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SECOND DIVISION

[G.R. No. 149926. February 23, 2005.]


UNION BANK OF THE PHILIPPINES, petitioner, vs. EDMUND
SANTIBAEZ and FLORENCE SANTIBAEZ
ARIOLA, respondents.
D E C I S I O N
CALLEJO, SR., J p:
Before us is a petition for review on certiorari under Rule 45 of the Revised Rules
of Court which seeks the reversal of the Decision 1 of the Court of Appeals dated
May 30, 2001 in CA-G.R. CV No. 48831 affirming the dismissal 2 of the
petitioner's complaint in Civil Case No. 18909 by the Regional Trial Court (RTC)
of Makati City, Branch 63.
The antecedent facts are as follows:
On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim
M. Santibaez entered into a loan agreement 3 in the amount of P128,000.00.
The amount was intended for the payment of the purchase price of one (1) unit
Ford 6600 Agricultural All-Purpose Diesel Tractor. In view thereof, Efraim and his
son, Edmund, executed a promissory note in favor of the FCCC, the principal
sum payable in five equal annual amortizations of P43,745.96 due on May 31,
1981 and every May 31st thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into another loan
agreement, 4 this time in the amount of P123,156.00. It was intended to pay the
balance of the purchase price of another unit of Ford 6600 Agricultural All-
Purpose Diesel Tractor, with accessories, and one (1) unit Howard Rotamotor
Model AR 60K. Again, Efraim and his son, Edmund, executed a promissory note
for the said amount in favor of the FCCC. Aside from such promissory note, they
also signed a Continuing Guaranty Agreement 5 for the loan dated December 13,
1980. jur2005cd
Sometime in February 1981, Efraim died, leaving a holographic
will. 6 Subsequently in March 1981, testate proceedings commenced before the
RTC of Iloilo City, Branch 7, docketed as Special Proceedings No. 2706. On April
9, 1981, Edmund, as one of the heirs, was appointed as the special administrator
of the estate of the decedent. 7 During the pendency of the testate proceedings,
the surviving heirs, Edmund and his sister Florence Santibaez Ariola, executed
a Joint Agreement 8 dated July 22, 1981, wherein they agreed to divide between
themselves and take possession of the three (3) tractors; that is, two (2) tractors
for Edmund and one (1) tractor for Florence. Each of them was to assume the
indebtedness of their late father to FCCC, corresponding to the tractor
respectively taken by them. SEIcAD
On August 20, 1981, a Deed of Assignment with Assumption of Liabilities 9 was
executed by and between FCCC and Union Savings and Mortgage Bank,
wherein the FCCC as the assignor, among others, assigned all its assets and
liabilities to Union Savings and Mortgage Bank.
Demand letters 10 for the settlement of his account were sent by
petitioner Union Bank of the Philippines (UBP) to Edmund, but the latter failed to
heed the same and refused to pay. Thus, on February 5, 1988, the petitioner filed
a Complaint 11 for sum of money against the heirs of Efraim Santibaez, Edmund
and Florence, before the RTC of Makati City, Branch 150, docketed as Civil Case
No. 18909. Summonses were issued against both, but the one intended for
Edmund was not served since he was in the United States and there was no
information on his address or the date of his return to the
Philippines. 12 Accordingly, the complaint was narrowed down to respondent
Florence S. Ariola.
On December 7, 1988, respondent Florence S. Ariola filed her Answer 13 and
alleged that the loan documents did not bind her since she was not a party
thereto. Considering that the joint agreement signed by her and her brother
Edmund was not approved by the probate court, it was null and void; hence, she
was not liable to the petitioner under the joint agreement.
On January 29, 1990, the case was unloaded and re-raffled to the RTC of Makati
City, Branch 63. 14 Consequently, trial on the merits ensued and a decision was
subsequently rendered by the court dismissing the complaint for lack of merit.
The decretal portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered DISMISSING the complaint
for lack of merit. 15
The trial court found that the claim of the petitioner should have been filed with
the probate court before which the testate estate of the late Efraim Santibaez
was pending, as the sum of money being claimed was an obligation incurred by
the said decedent. The trial court also found that the Joint Agreement apparently
executed by his heirs, Edmund and Florence, on July 22, 1981, was, in effect, a
partition of the estate of the decedent. However, the said agreement was void,
considering that it had not been approved by the probate court, and that there
can be no valid partition until after the will has been probated. The trial court
further declared that petitioner failed to prove that it was the now
defunct Union Savings and Mortgage Bank to which the FCCC had assigned its
assets and liabilities. The court also agreed to the contention of respondent
Florence S. Ariola that the list of assets and liabilities of the FCCC assigned
to Union Savings and Mortgage Bank did not clearly refer to the decedent's
account. Ruling that the joint agreement executed by the heirs was null and void,
the trial court held that the petitioner's cause of action against respondent
Florence S. Ariola must necessarily fail.
The petitioner appealed from the RTC decision and elevated its case to the Court
of Appeals (CA), assigning the following as errors of the trial court:
1.THE COURT A QUO ERRED IN FINDING THAT THE JOINT
AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE
PROBATE COURT.
2.THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE NO
VALID PARTITION AMONG THE HEIRS UNTIL AFTER THE
WILL HAS BEEN PROBATED.
3.THE COURT A QUO ERRED IN NOT FINDING THAT THE
DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM
RE-LITIGATED IN THE ESTATE PROCEEDING. 16
The petitioner asserted before the CA that the obligation of the deceased had
passed to his legitimate children and heirs, in this case, Edmund and Florence;
the unconditional signing of the joint agreement marked as Exhibit "A" estopped
respondent Florence S. Ariola, and that she cannot deny her liability under the
said document; as the agreement had been signed by both heirs in their personal
capacity, it was no longer necessary to present the same before the probate
court for approval; the property partitioned in the agreement was not one of those
enumerated in the holographic will made by the deceased; and the active
participation of the heirs, particularly respondent Florence S. Ariola, in the
present ordinary civil action was tantamount to a waiver to re-litigate the claim in
the estate proceedings.
On the other hand, respondent Florence S. Ariola maintained that the money
claim of the petitioner should have been presented before the probate court. 17
The appellate court found that the appeal was not meritorious and held that the
petitioner should have filed its claim with the probate court as provided under
Sections 1 and 5, Rule 86 of the Rules of Court. It further held that the partition
made in the agreement was null and void, since no valid partition may be had
until after the will has been probated. According to the CA, page 2, paragraph (e)
of the holographic will covered the subject properties (tractors) in generic terms
when the deceased referred to them as "all other properties." Moreover, the
active participation of respondent Florence S. Ariola in the case did not amount
to a waiver. Thus, the CA affirmed the RTC decision, viz.:
WHEREFORE, premises considered, the appealed Decision of the
Regional Trial Court of Makati City, Branch 63, is hereby AFFIRMED in
toto. ISAcHD
SO ORDERED. 18
In the present recourse, the petitioner ascribes the following errors to the CA:
I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT
THE JOINT AGREEMENT SHOULD BE APPROVED BY THE
PROBATE COURT.
II.
THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN
BE NO VALID PARTITION AMONG THE HEIRS OF THE LATE
EFRAIM SANTIBAEZ UNTIL AFTER THE WILL HAS BEEN
PROBATED.
III.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-
LITIGATED IN THE ESTATE PROCEEDING.
IV.
RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY
LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM
SANTIBAEZ ON THE STRENGTH OF THE CONTINUING
GUARANTY AGREEMENT EXECUTED IN FAVOR OF PETITIONER-
APPELLANT UNION BANK.
V.
THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF
P128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT OF
P123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT THE
RESPONDENTS BOUND THEMSELVES JOINTLY AND SEVERALLY
LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAEZ IN FAVOR
OF PETITIONERUNION BANK. 19
The petitioner claims that the obligations of the deceased were transmitted to the
heirs as provided in Article 774 of the Civil Code; there was thus no need for the
probate court to approve the joint agreement where the heirs partitioned the
tractors owned by the deceased and assumed the obligations related thereto.
Since respondent Florence S. Ariola signed the joint agreement without any
condition, she is now estopped from asserting any position contrary thereto. The
petitioner also points out that the holographic will of the deceased did not include
nor mention any of the tractors subject of the complaint, and, as such was
beyond the ambit of the said will. The active participation and resistance of
respondent Florence S. Ariola in the ordinary civil action against the petitioner's
claim amounts to a waiver of the right to have the claim presented in the probate
proceedings, and to allow any one of the heirs who executed the joint agreement
to escape liability to pay the value of the tractors under consideration would be
equivalent to allowing the said heirs to enrich themselves to the damage and
prejudice of the petitioner.
The petitioner, likewise, avers that the decisions of both the trial and appellate
courts failed to consider the fact that respondent Florence S. Ariola and her
brother Edmund executed loan documents, all establishing the vinculum juris or
the legal bond between the late Efraim Santibaez and his heirs to be in the
nature of a solidary obligation. Furthermore, the Promissory Notes dated May 31,
1980 and December 13, 1980 executed by the late Efraim Santibaez, together
with his heirs, Edmund and respondent Florence, made the obligation solidary as
far as the said heirs are concerned. The petitioner also proffers that, considering
the express provisions of the continuing guaranty agreement and the promissory
notes executed by the named respondents, the latter must be held liable jointly
and severally liable thereon. Thus, there was no need for the petitioner to file its
money claim before the probate court. Finally, the petitioner stresses that both
surviving heirs are being sued in their respective personal capacities, not as heirs
of the deceased. cSITDa

In her comment to the petition, respondent Florence S. Ariola maintains that the
petitioner is trying to recover a sum of money from the deceased Efraim
Santibaez; thus the claim should have been filed with the probate court. She
points out that at the time of the execution of the joint agreement there was
already an existing probate proceedings of which the petitioner knew about.
However, to avoid a claim in the probate court which might delay payment of the
obligation, the petitioner opted to require them to execute the said agreement.
According to the respondent, the trial court and the CA did not err in declaring
that the agreement was null and void. She asserts that even if the agreement
was voluntarily executed by her and her brother Edmund, it should still have
been subjected to the approval of the court as it may prejudice the estate, the
heirs or third parties. Furthermore, she had not waived any rights, as she even
stated in her answer in the court a quo that the claim should be filed with the
probate court. Thus, the petitioner could not invoke or claim that she is in
estoppel.
Respondent Florence S. Ariola further asserts that she had not signed any
continuing guaranty agreement, nor was there any document presented as
evidence to show that she had caused herself to be bound by the obligation of
her late father.
The petition is bereft of merit.
The Court is posed to resolve the following issues: a) whether or not the partition
in the Agreement executed by the heirs is valid; b) whether or not the heirs'
assumption of the indebtedness of the deceased is valid; and c) whether the
petitioner can hold the heirs liable on the obligation of the deceased.
At the outset, well-settled is the rule that a probate court has the jurisdiction to
determine all the properties of the deceased, to determine whether they should
or should not be included in the inventory or list of properties to be
administered. 20 The said court is primarily concerned with the administration,
liquidation and distribution of the estate.21
In our jurisdiction, the rule is that there can be no valid partition among the heirs
until after the will has been probated.
In testate succession, there can be no valid partition among the heirs until after
the will has been probated. The law enjoins the probate of a will and the public
requires it, because unless a will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by will may be
rendered nugatory. The authentication of a will decides no other question than
such as touch upon the capacity of the testator and the compliance with those
requirements or solemnities which the law prescribes for the validity of a will. 22
This, of course, presupposes that the properties to be partitioned are the same
properties embraced in the will. 23 In the present case, the deceased, Efraim
Santibaez, left a holographic will 24 which contained, inter alia, the provision
which reads as follows:
(e)All other properties, real or personal, which I own and may be
discovered later after my demise, shall be distributed in the
proportion indicated in the immediately preceding paragraph in
favor of Edmund and Florence, my children.
We agree with the appellate court that the above-quoted is an all-encompassing
provision embracing all the properties left by the decedent which might have
escaped his mind at that time he was making his will, and other properties he
may acquire thereafter. Included therein are the three (3) subject tractors. This
being so, any partition involving the said tractors among the heirs is not valid.
The joint agreement 25 executed by Edmund and Florence, partitioning the
tractors among themselves, is invalid, specially so since at the time of its
execution, there was already a pending proceeding for the probate of their late
father's holographic will covering the said tractors. aSCHcA
It must be stressed that the probate proceeding had already acquired jurisdiction
over all the properties of the deceased, including the three (3) tractors. To
dispose of them in any way without the probate court's approval is tantamount to
divesting it with jurisdiction which the Court cannot allow. 26 Every act intended to
put an end to indivision among co-heirs and legatees or devisees is deemed to
be a partition, although it should purport to be a sale, an exchange, a
compromise, or any other transaction. 27 Thus, in executing any joint agreement
which appears to be in the nature of an extra-judicial partition, as in the case at
bar, court approval is imperative, and the heirs cannot just divest the court of its
jurisdiction over that part of the estate. Moreover, it is within the jurisdiction of the
probate court to determine the identity of the heirs of the decedent. 28 In the
instant case, there is no showing that the signatories in the joint agreement were
the only heirs of the decedent. When it was executed, the probate of the will was
still pending before the court and the latter had yet to determine who the heirs of
the decedent were. Thus, for Edmund and respondent Florence S. Ariola to
adjudicate unto themselves the three (3) tractors was a premature act, and
prejudicial to the other possible heirs and creditors who may have a valid claim
against the estate of the deceased.
The question that now comes to fore is whether the heirs' assumption of the
indebtedness of the decedent is binding. We rule in the negative. Perusing the
joint agreement, it provides that the heirs as parties thereto "have agreed to
divide between themselves and take possession and use the above-described
chattel and each of them to assume the indebtedness corresponding to the
chattel taken as herein after stated which is in favor of First Countryside Credit
Corp." 29 The assumption of liability was conditioned upon the happening of an
event, that is, that each heir shall take possession and use of their respective
share under the agreement. It was made dependent on the validity of the
partition, and that they were to assume the indebtedness corresponding to the
chattel that they were each to receive. The partition being invalid as earlier
discussed, the heirs in effect did not receive any such tractor. It follows then that
the assumption of liability cannot be given any force and effect.
The Court notes that the loan was contracted by the decedent. The petitioner,
purportedly a creditor of the late Efraim Santibaez, should have thus filed its
money claim with the probate court in accordance with Section 5, Rule 86 of the
Revised Rules of Court, which provides:
Section 5.Claims which must be filed under the notice. If not filed barred;
exceptions. All claims for money against the decedent, arising from
contract, express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses for the last sickness of the
decedent, and judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they are barred forever,
except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants. Where an
executor or administrator commences an action, or prosecutes an action
already commenced by the deceased in his lifetime, the debtor may set
forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and
mutual claims may be set off against each other in such action; and if
final judgment is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against the estate, as
though the claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent, may be
approved at their present value.
The filing of a money claim against the decedent's estate in the probate court is
mandatory. 30 As we held in the vintage case of Py Eng Chong v. Herrera: 31
. . . This requirement is for the purpose of protecting the estate of the
deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine
whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of the
deceased and the early delivery of the property to the distributees,
legatees, or heirs. 'The law strictly requires the prompt presentation and
disposition of the claims against the decedent's estate in order to settle
the affairs of the estate as soon as possible, pay off its debts and
distribute the residue. 32
Perusing the records of the case, nothing therein could hold private respondent
Florence S. Ariola accountable for any liability incurred by her late father. The
documentary evidence presented, particularly the promissory notes and the
continuing guaranty agreement, were executed and signed only by the late
Efraim Santibaez and his son Edmund. As the petitioner failed to file its money
claim with the probate court, at most, it may only go after Edmund as co-maker of
the decedent under the said promissory notes and continuing guaranty, of
course, subject to any defenses Edmund may have as against the petitioner. As
the court had not acquired jurisdiction over the person of Edmund, we find it
unnecessary to delve into the matter further. DSTCIa
We agree with the finding of the trial court that the petitioner had not sufficiently
shown that it is the successor-in-interest of the Union Savings and
Mortgage Bank to which the FCCC assigned its assets and liabilities. 33 The
petitioner in its complaint alleged that "by virtue of the Deed of Assignment dated
August 20, 1981 executed by and between First Countryside Credit Corporation
and Union Bank of the Philippines . . ." 34 However, the documentary
evidence 35 clearly reflects that the parties in the deed of assignment with
assumption of liabilities were the FCCC, and the Union Savings and
Mortgage Bank, with the conformity of Bancom Philippine Holdings, Inc. Nowhere
can the petitioner's participation therein as a party be found. Furthermore, no
documentary or testimonial evidence was presented during trial to show
that Union Savings and Mortgage Bank is now, in fact, petitioner Union Bank of
the Philippines. As the trial court declared in its decision:

. . . [T]he court also finds merit to the contention of defendant that
plaintiff failed to prove or did not present evidence to prove
that Union Savings and MortgageBank is now the Union Bank of the
Philippines. Judicial notice does not apply here. "The power to take
judicial notice is to [be] exercised by the courts with caution; care must
be taken that the requisite notoriety exists; and every reasonable doubt
upon the subject should be promptly resolved in the negative." (Republic
vs. Court of Appeals, 107 SCRA 504). 36
This being the case, the petitioner's personality to file the complaint is wanting.
Consequently, it failed to establish its cause of action. Thus, the trial court did not
err in dismissing the complaint, and the CA in affirming the same.
IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The
assailed Court of Appeals Decision is AFFIRMED. No costs.
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.
Footnotes
1.Penned by Associate Justice Bienvenido L. Reyes with Associate Justices Eubulo
G. Verzola (deceased), and Marina L. Buzon, concurring.
2.Penned by Presiding Judge Julio R. Logarta.
3.Records, pp. 8-12.
4.Id. at 13-18.
5.Id. at 19-20.
6.Exhibit 7.
7.Annex A of the Answer, Records, p. 48.
8.Exhibit A.
9.Exhibit G.
10.Exhibits E and F.
11.Records, p. 1.
12.See Sheriff's Return of Service, Id. at 39.
13.Records, p. 42.
14.Id. at 83.
15.Id. at 522.
16.CA Rollo, p. 43.
17.Id. at 76.
18.Rollo, p. 30.
19.Id. at 7-8.
20.See Ortega v. Court of Appeals, 153 SCRA 96 (1987); See also Morales v. CFI of
Cavite, Br. V, 146 SCRA 373 (1986).
21.See De la Cruz v. Camon, 16 SCRA 886 (1966).
22.Vda. de Kilayko v. Tengco, 207 SCRA 600 (1992).
23.Ralla v. Untalan, 172 SCRA 858 (1989).
24.Exhibit 7.
25.Exhibit A.
26.See Sandoval v. Santiago, 83 Phil 784 (1949).
27.Article 1082, New Civil Code.
28.See Reyes v. Ysip, 97 Phil 11 (1955).
29.See Exhibit 7.
30.See De Bautista v. De Guzman, 125 SCRA 676 (1983).
31.70 SCRA 130 (1976).
32.Ibid.
33.See Exhibit G.
34.Records, p. 4.
35.Exhibit G.
36.Records, p. 521.

||| (Union Bank of the Phil. v. Santiba, G.R. No. 149926, February 23, 2005)

THIRD DIVISION
[G.R. No. 168970. January 15, 2010.]
CELESTINO BALUS, petitioner, vs. SATURNINO BALUS and
LEONARDA BALUS VDA. DE CALUNOD, respondents.
DECISION
PERALTA, J p:
Assailed in the present petition for review on certiorari under Rule 45 of the Rules
of Court is the Decision 1 of the Court of Appeals (CA) dated May 31, 2005 in CA-
G.R. CV No. 58041 which set aside the February 7, 1997 Decision of the
Regional Trial Court (RTC) of Lanao del Norte, Branch 4 in Civil Case No. 3263.
The facts of the case are as follows:
Herein petitioner and respondents are the children of the spouses Rufo and
Sebastiana Balus. Sebastiana died on September 6, 1978, while Rufo died on
July 6, 1984.
On January 3, 1979, Rufo mortgaged a parcel of land, which he owns, as
security for a loan he obtained from the Rural Bank of Maigo, Lanao del Norte
(Bank). The said property was originally covered by Original Certificate of Title
No. P-439(788) and more particularly described as follows:
A parcel of land with all the improvements thereon, containing an area of
3.0740 hectares, more or less, situated in the Barrio of Lagundang,
Bunawan, Iligan City, and bounded as follows: Bounded on the NE.,
along line 1-2, by Lot 5122, Csd-292; along line 2-12, by Dodiongan
River; along line 12-13 by Lot 4649, Csd-292; and along line 12-1, by Lot
4661, Csd-292. . . . 2
Rufo failed to pay his loan. As a result, the mortgaged property was foreclosed
and was subsequently sold to the Bank as the sole bidder at a public auction
held for that purpose. On November 20, 1981, a Certificate of Sale 3 was
executed by the sheriff in favor of the Bank. The property was not redeemed
within the period allowed by law. More than two years after the auction, or on
January 25, 1984, the sheriff executed a Definite Deed of Sale 4 in the Bank's
favor. Thereafter, a new title was issued in the name of the Bank. SDATEc
On October 10, 1989, herein petitioner and respondents executed an
Extrajudicial Settlement of Estate 5 adjudicating to each of them a specific one-
third portion of the subject property consisting of 10,246 square meters. The
Extrajudicial Settlement also contained provisions wherein the parties admitted
knowledge of the fact that their father mortgaged the subject property to the Bank
and that they intended to redeem the same at the soonest possible time.
Three years after the execution of the Extrajudicial Settlement, herein
respondents bought the subject property from the Bank. On October 12, 1992, a
Deed of Sale of Registered Land 6 was executed by the Bank in favor of
respondents. Subsequently, Transfer Certificate of Title (TCT) No. T-39,484
(a.f.) 7 was issued in the name of respondents. Meanwhile, petitioner continued
possession of the subject lot.
On June 27, 1995, respondents filed a Complaint 8 for Recovery of Possession
and Damages against petitioner, contending that they had already informed
petitioner of the fact that they were the new owners of the disputed property, but
the petitioner still refused to surrender possession of the same to them.
Respondents claimed that they had exhausted all remedies for the amicable
settlement of the case, but to no avail.
On February 7, 1997, the RTC rendered a Decision 9 disposing as follows:
WHEREFORE, judgment is hereby rendered, ordering the plaintiffs to
execute a Deed of Sale in favor of the defendant, the one-third share of
the property in question, presently possessed by him, and described in
the deed of partition, as follows:
A one-third portion of Transfer Certificate of Title No. T-39,484
(a.f.), formerly Original Certificate of Title No. P-788, now in the
name of Saturnino Balus and Leonarda B. Vda. de Calunod,
situated at Lagundang, Bunawan, Iligan City, bounded on the
North by Lot 5122; East by shares of Saturnino Balus and
LeonardaBalus-Calunod; South by Lot 4649, Dodiongan River;
West by Lot 4661, consisting of 10,246 square meters, including
improvements thereon.
and dismissing all other claims of the parties.
The amount of P6,733.33 consigned by the defendant with the Clerk of
Court is hereby ordered delivered to the plaintiffs, as purchase price of
the one-third portion of the land in question.
Plaintiffs are ordered to pay the costs.
SO ORDERED. 10
The RTC held that the right of petitioner to purchase from the respondents his
share in the disputed property was recognized by the provisions of the
Extrajudicial Settlement of Estate, which the parties had executed before the
respondents bought the subject lot from the Bank.
Aggrieved by the Decision of the RTC, herein respondents filed an appeal with
the CA.
On May 31, 2005, the CA promulgated the presently assailed Decision, reversing
and setting aside the Decision of the RTC and ordering petitioner to immediately
surrender possession of the subject property to the respondents. The CA ruled
that when petitioner and respondents did not redeem the subject property within
the redemption period and allowed the consolidation of ownership and the
issuance of a new title in the name of the Bank, their co-ownership was
extinguished.
Hence, the instant petition raising a sole issue, to wit:
WHETHER OR NOT CO-OWNERSHIP AMONG THE PETITIONER
AND THE RESPONDENTS OVER THE PROPERTY
PERSISTED/CONTINUED TO EXIST (EVEN AFTER THE TRANSFER
OF TITLE TO THE BANK) BY VIRTUE OF THE PARTIES'
AGREEMENT PRIOR TO THE REPURCHASE THEREOF BY THE
RESPONDENTS; THUS, WARRANTING THE PETITIONER'S ACT OF
ENFORCING THE AGREEMENT BY REIMBURSING THE
RESPONDENTS OF HIS (PETITIONER'S) JUST SHARE OF THE
REPURCHASE PRICE. 11
The main issue raised by petitioner is whether co-ownership by him and
respondents over the subject property persisted even after the lot was purchased
by the Bank and title thereto transferred to its name, and even after it was
eventually bought back by the respondents from the Bank. cda
Petitioner insists that despite respondents' full knowledge of the fact that the title
over the disputed property was already in the name of the Bank, they still
proceeded to execute the subject Extrajudicial Settlement, having in mind the
intention of purchasing back the property together with petitioner and of
continuing their co-ownership thereof.
Petitioner posits that the subject Extrajudicial Settlement is, in and by itself, a
contract between him and respondents, because it contains a provision whereby
the parties agreed to continue their co-ownership of the subject property by
"redeeming" or "repurchasing" the same from the Bank. This agreement,
petitioner contends, is the law between the parties and, as such, binds the
respondents. As a result, petitioner asserts that respondents' act of buying the
disputed property from the Bank without notifying him inures to his benefit as to
give him the right to claim his rightful portion of the property, comprising 1/3
thereof, by reimbursing respondents the equivalent 1/3 of the sum they paid to
the Bank.
The Court is not persuaded.
Petitioner and respondents are arguing on the wrong premise that, at the time of
the execution of the Extrajudicial Settlement, the subject property formed part of
the estate of their deceased father to which they may lay claim as his heirs.
At the outset, it bears to emphasize that there is no dispute with respect to the
fact that the subject property was exclusively owned by petitioner and
respondents' father, Rufo, at the time that it was mortgaged in 1979. This was
stipulated by the parties during the hearing conducted by the trial court on
October 28, 1996. 12 Evidence shows that a Definite Deed of Sale 13 was issued
in favor of the Bank on January 25, 1984, after the period of redemption expired.
There is neither any dispute that a new title was issued in the Bank's name
before Rufo died on July 6, 1984. Hence, there is no question that the Bank
acquired exclusive ownership of the contested lot during the lifetime of Rufo.
The rights to a person's succession are transmitted from the moment of his
death. 14 In addition, the inheritance of a person consists of the property and
transmissible rights and obligations existing at the time of his death, as well as
those which have accrued thereto since the opening of the succession. 15 In the
present case, since Rufo lost ownership of the subject property during his
lifetime, it only follows that at the time of his death, the disputed parcel of land no
longer formed part of his estate to which his heirs may lay claim. Stated
differently, petitioner and respondents never inherited the subject lot from their
father.
Petitioner and respondents, therefore, were wrong in assuming that they became
co-owners of the subject lot. Thus, any issue arising from the supposed right of
petitioner as co-owner of the contested parcel of land is negated by the fact that,
in the eyes of the law, the disputed lot did not pass into the hands of petitioner
and respondents as compulsory heirs of Rufo at any given point in time. acCETD
The foregoing notwithstanding, the Court finds a necessity for a complete
determination of the issues raised in the instant case to look into petitioner's
argument that the Extrajudicial Settlement is an independent contract which
gives him the right to enforce his right to claim a portion of the disputed lot
bought by respondents.
It is true that under Article 1315 of the Civil Code of the Philippines, contracts are
perfected by mere consent; and from that moment, the parties are bound not only
to the fulfillment of what has been expressly stipulated but also to all the
consequences which, according to their nature, may be in keeping with good
faith, usage and law.
Article 1306 of the same Code also provides that the contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided these are not contrary to law, morals, good customs, public
order or public policy.
In the present case, however, there is nothing in the subject Extrajudicial
Settlement to indicate any express stipulation for petitioner and respondents to
continue with their supposed co-ownership of the contested lot.
On the contrary, a plain reading of the provisions of the Extrajudicial Settlement
would not, in any way, support petitioner's contention that it was his and his
sibling's intention to buy the subject property from the Bank and continue what
they believed to be co-ownership thereof. It is a cardinal rule in the interpretation
of contracts that the intention of the parties shall be accorded primordial
consideration. 16 It is the duty of the courts to place a practical and realistic
construction upon it, giving due consideration to the context in which it is
negotiated and the purpose which it is intended to serve. 17 Such intention is
determined from the express terms of their agreement, as well as their
contemporaneous and subsequent acts. 18 Absurd and illogical interpretations
should also be avoided. 19
For petitioner to claim that the Extrajudicial Settlement is an agreement between
him and his siblings to continue what they thought was their ownership of the
subject property, even after the same had been bought by the Bank, is stretching
the interpretation of the said Extrajudicial Settlement too far.
In the first place, as earlier discussed, there is no co-ownership to talk about and
no property to partition, as the disputed lot never formed part of the estate of their
deceased father.
Moreover, petitioner's asseveration of his and respondents' intention of
continuing with their supposed co-ownership is negated by no less than his
assertions in the present petition that on several occasions he had the chance to
purchase the subject property back, but he refused to do so. In fact, he claims
that after the Bank acquired the disputed lot, it offered to re-sell the same to him
but he ignored such offer. How then can petitioner now claim that it was also his
intention to purchase the subject property from the Bank, when he admitted that
he refused the Bank's offer to re-sell the subject property to him?
In addition, it appears from the recitals in the Extrajudicial Settlement that, at the
time of the execution thereof, the parties were not yet aware that the subject
property was already exclusively owned by the Bank. Nonetheless, the lack of
knowledge on the part of petitioner and respondents that the mortgage was
already foreclosed and title to the property was already transferred to the Bank
does not give them the right or the authority to unilaterally declare themselves as
co-owners of the disputed property; otherwise, the disposition of the case would
be made to depend on the belief and conviction of the party-litigants and not on
the evidence adduced and the law and jurisprudence applicable thereto. THCSEA
Furthermore, petitioner's contention that he and his siblings intended to continue
their supposed co-ownership of the subject property contradicts the provisions of
the subject Extrajudicial Settlement where they clearly manifested their intention
of having the subject property divided or partitioned by assigning to each of the
petitioner and respondents a specific 1/3 portion of the same. Partition calls for
the segregation and conveyance of a determinate portion of the property owned
in common. It seeks a severance of the individual interests of each co-owner,
vesting in each of them a sole estate in a specific property and giving each one a
right to enjoy his estate without supervision or interference from the other. 20 In
other words, the purpose of partition is to put an end to co-ownership, 21 an
objective which negates petitioner's claims in the present case.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the
Court of Appeals, dated May 31, 2005 in CA-G.R. CV No. 58041, is AFFIRMED.
SO ORDERED.
Corona, Velasco, Jr., Nachura and Mendoza, JJ., concur.
Footnotes
1.Penned by Associate Justice Arturo G. Tayag, with Associate Justices Rodrigo F.
Lim, Jr. and Normandie B. Pizarro, concurring; CA rollo, pp. 69-76.
2.See Certificate of Sale and Definite Deed of Sale, Exhibits "A" and "B," respectively,
records, pp. 74-75.
3.Exhibit "A," records, p. 74.
4.Exhibit "B," id. at 75.
5.Exhibit "C"/"4," id. at 76.
6.Exhibit "D," id. at 79.
7.Exhibit "E," id. at 80.
8.Records, pp. 1-6.
9.Id. at 131-140.
10.Id. at 139-140.
11.Rollo, p. 21.
12.See TSN, October 28, 1996 p. 2.
13.Exhibit "B," records, p. 75.
14.Civil Code, Art. 777.
15.Civil Code, Art. 781.
16.Alio v. Heirs of Angelica A. Lorenzo, G.R. No. 159550, June 27, 2008, 556 SCRA
139, 148.
17.TSPIC Corporation v. TSPIC Employees Union (FFW), G.R. No. 163419, February
13, 2008, 545 SCRA 215, 226.
18.Tating v. Marcella, G.R. No. 155208, March 27, 2007, 519 SCRA 79, 87.
19.TSPIC Corporation v. TSPIC Employees Union (FFW), supra note 17.
20.Arbolario v. Court of Appeals, 449 Phil. 357, 369 (2003).
21.Cruz v. Court of Appeals, G.R. No. 122904, April 15, 2005, 456 SCRA 165,
171; Lopez v. Court of Appeals, 446 Phil. 722, 743 (2003).
||| (Balus v. Balus, G.R. No. 168970, January 15, 2010)
EN BANC
[G.R. No. L-4963. January 29, 1953.]
MARIA USON, plaintiff-appellee, vs. MARIA DEL ROSARIO,
CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR
NEBREDA, and FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
SYLLABUS
1.DESCENT AND DISTRIBUTION; HUSBAND AND WIFE; RIGHTS
OF LAWFUL WIFE AS AFFECTED BY THE NEW CIVIL CODE. The right
of ownership of the lawful wife of a decedent who had died before the new
Civil Code took effect became vested in her upon his death, and this is so
because of the imperative provision of the law which commands that the
rights of succession are transmitted from the moment of death (Art. 657, old
Civil Code; Ilustre vs. Frondosa, 17 Phil., 321). The new right recognized by
the new Civil Code in favor of the illegitimate children of the deceased can not
be asserted to the impairment of the vested right of the lawful wife over the
lands in dispute. While article 2253 of the new Civil Code provides that rights
which are declared for the first time shall have retroactive effect even though
the event which gave rise to them may have occurred under the former
legislation, yet this is so only when the new rights do not prejudice any vested
or acquired right of the same origin.
2.ID.; ID.; RENUNCIATION OF INHERITANCE MADE BY LAWFUL
WIFE; FUTURE INHERITANCE, NOT SUBJECT TO CONTRACT.
Although the lawful wife has expressly renounced her right to inherit any
future property that her husband may acquire and leave upon his death, such
renunciation cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be renounced (1
Manresa, 6th ed., 123; Osorio vs. Osorio, et al., 41 Phil., 531).
3.ID.; ID.; DONATIONS BY DECEASED; ESSENTIAL FORMALITIES
OF DONATION. Assignments, if any, made by the deceased of real
property for which there was no material consideration, should be made in a
public document and must be accepted either in the same document or in a
separate one (Art. 633, old Civil Code). Assignments or donations which lack
this essential formality have no valid effect.
D E C I S I O N
BAUTISTA ANGELO, J p:
This is an action for the recovery of the ownership and possession of
five (5) parcels of land situated in the municipality of Labrador, Province of
Pangasinan, filed by Maria Uson against Maria del Rosario and her four
children named Concepcion, Conrado, Dominador, and Faustino, surnamed
Nebreda, who are all of minor age, before the Court of First Instance of
Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his
death in 1945 left the lands involved in this litigation. Faustino Nebreda left no
other heir except his widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common- law wife Maria del Rosario took
possession illegally of said lands thus depriving her of their possession and
enjoyment.
Defendants in their answer set up as special defense that on February
21, 1931, Maria Uson and her husband, the late Faustino Nebreda, executed
a public document whereby they agreed to separate as husband and wife
and, in consideration of their separation, Maria Uson was given a parcel of
land by way of alimony and in return she renounced her right to inherit any
other property that may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the
court rendered decision ordering the defendants to restore to the plaintiff the
ownership and possession of the lands in dispute without special
pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife
of Faustino Nebreda, former owner of the five parcels of lands litigated in the
present case. There is likewise no dispute that Maria del Rosario, one of the
defendants-appellants, was merely a common-law wife of the late Faustino
Nebreda with whom she had four illegitimate children, her now co-defendants.
It likewise appears that Faustino Nebreda died in 1945 much prior to the
effectivity of the new Civil Code. With this background, it is evident that when
Faustino Nebreda died in 1945 the five parcels of land he was seized of at the
time passed from the moment of his death to his only heir, his widow
Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The
property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for
the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the lands in question
became vested.
The claim of the defendants that Maria Uson had relinquished her right
over the lands in question because she expressly renounced to inherit any
future property that her husband may acquire and leave upon his death in the
deed of separation they had entered into on February 21, 1931, cannot be
entertained for the simple reason that future inheritance cannot be the subject
of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino
on Civil Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda and under
the old Civil Code are not entitled to any successional rights, however, under
the new Civil Code which became in force in June, 1950, they are given the
status and rights of natural children and are entitled to the successional rights
which the law accords to the latter (Article 2264 and article 287, new Civil
Code), and because these successional rights were declared for the first time
in the new code, they shall be given retroactive effect even though the event
which gave rise to them may have occurred under the prior legislation (Article
2253, new Civil Code).
There is no merit in this claim. Article 2253 above referred to provides
indeed that rights which are declared for the first time shall have retroactive
effect even though the event which gave rise to them may have occurred
under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article
provides that "if a right should be declared for the first time in this Code, it
shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired
right, of the same origin." As already stated in the early part of this decision,
the right of ownership of Maria Uson over the lands in question became
vested in 1945 upon the death of her late husband and this is so because of
the imperative provision of the law which commands that the rights to
succession are transmitted from the moment of death (Article 657, old Civil
Code). The new right recognized by the new Civil Code in favor of the
illegitimate children of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was
lying in state, in a gesture of pity or compassion, agreed to assign the lands in
question to the minor children for the reason that they were acquired while the
deceased was living with their mother and Maria Uson wanted to assuage
somewhat the wrong she has done to them, this much can be said; apart from
the fact that this claim is disputed, we are of the opinion that said assignment,
if any, partakes of the nature of a donation of real property, inasmuch as it
involves no material consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code). Inasmuch as this
essential formality has not been followed, it results that the alleged
assignment or donation has no valid effect.
Wherefore, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes,
Jugo and Labrador, JJ., concur.
||| (Uson v. Del Rosario, G.R. No. L-4963, January 29, 1953)

EN BANC
[G.R. No. L-6622. July 31, 1957.]
Intestate Estate of the deceased MARCELO DE BORJA.
CRISANTO DE BORJA, administrator-appellant, vs. JUAN
DE BORJA, ET AL., oppositors-appellees.
E. V. Filamor for appellant.
Juan de Borja for himself and co-appellees.
SYLLABUS
1.PLEADING AND PRACTICE; NATURE OF COUNTERCLAIM. A
counterclaim is a relief available to a party-defendant against the adverse
party which may or may not be independent from the main issue.
2.ID.; PARTIES; COUNSEL FOR A PARTY SHOULD NOT BE
INCLUDED AS DEFENDANT IN COUNTERCLAIM. The appearance of a
lawyer as Counsel for a party and his participation in a case as such counsel
does not make him a party to the action. The fact that he represents the
interests of his client or that he acts in their behalf will not hold him liable for or
make him entitled to any award that the Court may adjudicate to the parties,
other than his professional fees. The principle that a counterclaim cannot be
filed against persons who are acting in representation of another such as
trustees in their individual capacities (Chambers vs. Cameron 2 Fed. Rules
Service 155; 29 of Supp. 742), could be applied with more force and effect in
the case of a counsel whose participation in the action is merely confined to
the preparation of the defense of the client.
3.COURTS; JURISDICTION OF PROBATE COURT LIMITED AND
SPECIAL. In taking cognizance of a special proceedings for the purpose of
settling the estate of a deceased person, the Court of First Instance in its
capacity as a probate Court is clothed with a limited jurisdiction which cannot
expand to Collateral matters not arising out of or in anyway related to the
settlement and adjudication of the properties of the deceased for it is a settled
rule that the jurisdiction of a probate Court is limited and special. Although
there is a tendency now to relax this rule and extend the jurisdiction of the
probate Court in respect to matters incidental and collateral to the exercise of
its recognized powers, this should be understood to comprehend only cases
related to those powers specifically allowed by the statutes.
4.DAMAGES; COUNTERCLAIM; TESTATE OF INTESTATE
PROCEEDINGS: MORAL DAMAGES IS EXTRANEOUS MATTER From
whatever angle it may be looked at, a counterclaim for moral damages
demanded by an administrator against the heirs for alleged utterances,
pleadings and actuations made in the course of a proceeding, is an
extraneous matter in a testate or intestate proceedings. The injection into the
action of incidental questions entirely foreign in probate proceedings should
not be encouraged for to do otherwise would run counter to the clear intention
of the law.
5.EXECUTOR AND ADMINISTRATORS; ACTS CF ADMINISTRATOR
CONSIDERED MALADMINISTRATION; ACCOUNTABILITY FOR LOSS OR
DAMAGE. Where the records are replete with instances of highly irregular
practices of the administrator such as the pretended ignorance of the
necessity of a book or ledger or at least a list of chronological and dated
entries of money or produce the intestate acquired and the amount of
disbursement made for the same properties; that admittedly the administrator
did not have even a list of the names of the lessees of the properties under
his administration, nor even a list of those who owed back rentals, and mixing
the funds of the estate under his administration with his personal funds
instead of keeping a current account for the Intestate in his capacity as
administrator, in such instances the probate Court is justified in finding him
guilty of acts of maladministration and in holding him accountable for loss or
damage to Intestate.
D E C I S I O N
FELIX, J p:
The case. Quintin, Francisco, Crisanta and Juliana, all surnamed
de Borja, are the legitimate children of Marcelo de Borja, who, upon his
demise sometime in 1924 or 1925, left a considerable amount of property.
Intestate proceedings must have followed, and the pre-war records of the
case either burned, lost or destroyed during the last war, because the record
shows that in 1930 Quintin de Borja was already the administrator of the
Intestate Estate of Marcelo de Borja.
In the early part of 1938, Quintin de Borja died and Crisanto de Borja,
son of Francisco de Borja, was appointed and took over as administrator of
the Estate. Francisco de Borja, on the other hand, assumed his duties as
executor of the will of Quintin de Borja, but upon petition of the heirs of said
deceased on the ground that his interests were conflicting with that of his
brother's estate, he was later required by the Court to resign as such executor
and was succeeded by Rogelio Limaco, a son-in-law of Quintin de Borja.
It also appears that on February 16, 1940, at the hearing set for the
approval of the statement of accounts of the late administrator of the Intestate
Estate of Marcelo de Borja, then being opposed by Francisco de Borja, the
parties submitted an agreement, which was approved by the Court (Exh. A).
Said agreement, translated into English, reads as follows:
1.All the accounts submitted and those that are to be submitted
corresponding to this year will be considered approved;
2.No heir shall claim anything of the harvests from the lands in
Cainta that came from Exequiel Ampil, deceased, nor from the land in
Tabuatin, Nueva Ecija;
3.That the amounts of money taken by each heir shall be
considered as deposited in conjunction with the other properties of the
Intestate and shall form part of the mass without drawing any interest;
4.That it shall be understood as included in this mass the sum of
twelve thousand pesos (P12,000) that the sisters Crisanta and Juliana
de Borja paid of their own money as part of the price of the lands in
Cainta and three thousand pesos (P3,000) the price of the machinery for
irrigation;
5.The right, interests or participation that the deceased Quintin
de Borja has or may have in Civil Case No. 6190 of the Court of First
Instance of Nueva Ecija, shall be likewise included in the total mass of
the inheritance of the Intestate;
6.Not only the lands in Tabuatin but also those in Cainta coming
from the now deceased Exequiel Ampil shall also form part of the total
mass of the inheritance of the Intestate of the late Marcelo de Borja;
7.Once the total of the inheritance of the Intestate is made up as
specified before in this Agreement, partition thereof will be made as
follows:
From the total mass shall be deducted in case or in kind, Twelve
Thousand Pesos (P12,000) that shall be delivered to Da. Juliana
de Borja and Da. Crisanta deBorja in equal shares, and the rest shall be
divided among the four heirs, i.e., Don Francisco de Borja, the heirs of
Quintin de Borja, Da. Juliana de Borja and Da. Crisanta de Borja, in
equal parts. (TRANSLATION)
The Intestate remained under the administration of Crisanto
de Borja until the outbreak of the war. From then on and until the termination
of the war, there was a lull and state of inaction in Special Proceeding No.
2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of the
Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B.
Dayco, as administrator of the estate of his deceased mother, Crisanta
de Borja, who is one of the heirs, for the reconstitution of the records of this
case, the Court on December 11, 1945, ordered the reconstitution of the
same, requiring the administrator to submit his report and a copy of the
project of partition.
On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his
accounts for the period ranging from March 1 to December 22, 1945, which
according to the heirs of Quintin de Borja were so inadequate and general
that on February 28, 1946, they filed a motion for specification. On April 30,
1946, they also filed their opposition to said statement of accounts alleging
that the income reported in said statement was very much less than the true
and actual income of the estate and that the expenses appearing therein were
exaggerated and/or not actually incurred, and prayed that the statement of
accounts submitted by the administrator be disapproved.
The administrator later filed another report of his administration, dated
August 9, 1949, corresponding to the period lapsed from December 23, 1945,
to July 31, 1949, showing a cash balance of P71.96, but with pending
obligation amounting to P35,415.
On August 22, 1949, Juan de Borja and sisters, heirs of the deceased
Quintin de Borja, filed their opposition to the statement of accounts filed by the
administrator on the ground that same was not detailed enough to enable the
interested parties to verify the same; that they cannot understand why the
Intestate could suffer any loss considering that during the administration of the
same by the late Quintin de Borja, the Estate accumulated gains of more than
P100,000 in the form of advances to the heirs as well as cash balance; that
they desired to examine the accounts of Dr. Crisanto de Borja to verify the
loss and therefore prayed that the administrator be ordered to deposit with the
Clerk of Court all books, receipts, accounts and other papers pertaining to the
Estate of Marcelo de Borja. This motion was answered by the administrator
contending that the Report referred to was already clear and enough, the
income as well as the expenditures being specified therein; that he had to
spend for the repairs of the properties of the Estate damaged during the
Japanese occupation; that the allegation that during the administration of
Quintin de Borja the Estate realized a profit of P100,000 was not true,
because instead of gain there was even a shortage in the funds although said
administrator had collected all his fees (honorarios) and commissions
corresponding to the entire period of his incumbency; that the obligations
mentioned in said Report will be liquidated before the termination of the
proceedings in the same manner as it is done in any other intestate case; that
he was willing to submit all the receipts of the accounts for the examination of
the interested parties before the Clerk or before the Court itself; that this
Intestate could be terminated, the project of partition having been allowed and
confirmed by the Supreme Court and that the Administrator was also desirous
of terminating it definitely for the benefit of all the parties.

On September 14, 1949, the administrator filed another statement of
accounts covering the period of from March 1, 1945, to July 31, 1949, which
showed a cash balance of P71.95, with pending obligations in the sum of
P35,810.
The heirs of Quintin de Borja, Juan de Borja and his sisters, registered
their opposition to said statement of accounts and prayed the Court to
disapprove the same and to appoint an accountant to go over the books of the
administrator and to submit a report thereon as soon as possible. The heir
Juliana de Borja also formally offered her objection to the approval of the
accounts submitted by the administrator and prayed further that said
administrator be required to submit a complete accounting of his
administration of the Estate from 1937 to 1949. On the other hand, Francisco
de Borja and Miguel B. Dayco, as the only heir of the deceased Crisanta
de Borja, submitted to the Court an agreement to relieve the administrator
from accounting for the period of the Japanese occupation; that as to the
accounting from 1937 to 1941, they affirmed their conformity with the
agreement entered into by all the heirs appearing in the Bill of Exceptions of
Juliana de Borja; and that they have no objection to the approval of the
statement of accounts submitted by the administrator covering the years 1945
to 1949.
On December 6, 1949, the administrator, answered the opposition of
the heir Juliana de Borja, alleging that the corresponding statement of
accounts for the years 1937, 1938, 1939, 1940 and 1941 were presented and
approved by the Court before and during the Japanese occupation, but the
records of the same were destroyed in the Office of the Clerk of that Court
during the liberation of the province of Rizal, and his personal records were
also lost during the Japanese occupation, when his house was burned; that
Judge Pea who was presiding over the Court in 1945 impliedly denied the
petition of the heirs to require him to render an accounting for the period from
1942 to the early part of 1945, for the reason that whatever money obtained
from the Estate during said period could not be made the subject of any
adjudication it having been declared fiat money and without value, and
ordered that the statement of accounts be presented only for the period
starting from March 1, 1945. The administrator further stated that he was
anxious to terminate this administration but some of the heirs had not yet
complied with the conditions imposed in the project of partition which was
approved by the Supreme Court; that in accordance with said partition
agreement, Juliana de Borja must deliver to the administrator all the jewelry,
objects of value, utensils and other personal belongings of the deceased
spouses Marcelo de Borja and Tarcila Quiogue, which said heir had kept and
continued to retain in her possession; that the heirs of Quintin de Borja should
deliver to the administrator all the lands and a document transferring in favor
of the Intestate the two parcels of land with a total area of 71 hectares of
cultivated land in Cabanatuan, Nueva Ecija which were in the possession of
said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya,
which were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of
the project of partition; that as a consequence of the said dispossession, the
heirs of Quintin de Borja must deliver to the administrator the products of the
71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of the house
of Feliciana Mariano or else render to the Court an accounting of the products
of these properties from the time they took possession of the same in 1937 to
the present; that there was a pending obligation amounting to P36,000 as of
September 14, 1949, which the heirs should pay before the properties
adjudicated to them would be delivered. The Court, however, ordered the
administrator on December 10, 1949, to show and prove by evidence why he
should not be required to include in his accounts the proceeds of his
administration from 1937.
Meantime, Juliana de Borja filed a Constancia denying possession of
any jewelry belonging to the deceased spouses Marcelo de Borja and Tarcila
Quiogue or any other persona] belonging of said spouses, and signified her
willingness to turn over to the administrator the silverwares mentioned in
Paragraph III of the project of partition, which were the only property in her
care, on the date that she would expect the delivery to her of her share in the
inheritance from her deceased parents.
On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina,
Eufracia, Jacoba and Olimpia, all surnamed de Borja, as heirs of Quintin
de Borja, filed a motion for the delivery to them of their inheritance in the
estate, tendering to the administrator a document ceding and transferring to
the latter all the rights, interests and participation of Quintin de Borja in Civil
Case No. 7190 of the Court of First Instance of Nueva Ecija, pursuant to the
provisions of the Project of Partition, and expressing their willingness to put up
a bond if required to do so by the Court, and on July 18, 1950, the Court
ordered the administrator to deliver to Marcela, Juan, Saturnina, Eufracia,
Jacoba and Olimpia, all surnamed de Borja, all the properties adjudicated to
them in the Project of Partition dated February 8, 1944, upon the latter's filing
a bond in the sum of P10,000 conditioned upon the payment of such
obligation as may be ordered by the Court after a hearing on the controverted
accounts of the administrator. The Court considered the fact that the heirs had
complied with the requirement imposed by the Project of Partition when they
tendered the document ceding and transferring the rights and interests of
Quintin de Borja in the aforementioned lands and expressed the necessity of
terminating the proceedings as soon as practicable, observing that the Estate
had been under administration for over twenty-five years already. The Court,
however, deferred action on the petition filed by the special administratrix of
the Intestate Estate of Juliana de Borja until after compliance with the
conditions imposed by the project of partition. But on July 20, 1950,
apparently before the properties were delivered to the heirs, Francisco
de Borja and Miguel B. Dayco filed a motion informing the Court that the two
parcels of land located in Cabanatuan, Nueva Ecija, produced some 21,300
cavans of palay, amounting to P213,000 at P10 per cavan, which were
enjoyed by some heirs; that the administrator Crisanto de Borja had not taken
possession of the same for circumstances beyond his control; and that there
also existed the sum of P70,204 which the former administrator, Quintin
de Borja, received from properties that were redeemed, but which amount did
not come into the hands of the present administrator because according to
reliable information, same was delivered to the heir Juliana de Borja who
deposited it in her name at the Philippine National Bank. It was, therefore
prayed that the administrator be required to exert the necessary effort to
ascertain the identity of the person or persons who were in possession of the
same amount and of the value of the products of the lands in Mayapyap,
Cabanatuan, Nueva Ecija, and to recover the same for the Intestate Estate.
On July 28, 1950, the special administratrix of the estate of Juliana
de Borja, then deceased, filed an answer to the motion of these two heirs,
denying the allegation that said heir received any product of the lands
mentioned from Quintin de Borja, and informed the Court that the Mayapyap
property had always been in the possession of Francisco de Borja himself and
prayed the Court that the administrator be instructed to demand all the fruits
and products of said property from Francisco de Borja.
On July 28, 1950, the heirs of Quintin de Borja also filed their opposition
to the said motion of Francisco de Borja and Miguel B. Dayco on the ground
that the petition was superfluous because the present proceeding was only for
the approval of the statement of accounts filed by the administrator; that said
motion was improper because it was asking the Court to order the
administrator to perform what he was duty bound to do; and that said heirs
were already barred or estopped from raising that question in view of their
absolute ratification of and assent to the statement of accounts submitted by
the administrator.
On August 16, 1950, by order of the Court, the properties adjudicated to
Juliana de Borja in the Project of Partition were finally delivered to the estate
of said heir upon the filing of a bond for P20,000. In that same order, the
Court denied the administrator's motion to reconsider the order of July 18,
1950, requiring him to deliver to the heirs of Quintin de Borja the properties
corresponding to them, on the ground that there existed no sufficient reason
to disturb said order. It also ruled that as the petition of Francisco
de Borja and Miguel B. Dayco made mention of certain properties allegedly
belonging to the Intestate, said petition should properly be considered
together with the final accounts of the administrator.
The administrator raised the matter by certiorari to this Tribunal, which
was docketed as G. R. No. L-4179, and on May 30, 1951, We rendered
decision affirming the order complained of, finding that the heirs Juan
de Borja and sisters have complied with the requirement imposed in the
Project of Partition upon the tender of the document of cession of rights and
quit-claim executed by Marcela de Borja, the administratrix of the Estate of
Quintin de Borja, and holding that the reasons advanced by the administrator
in opposing the execution of the order of delivery were trivial.
On August 27, 1951, the administrator filed his amended statement of
accounts covering the period from March 1, 1945, to July 31, 1949, which
showed a cash balance of P36,660. An additional statement of accounts filed
on August 31, 1951 for the period of from August 1, 1949, to August 31, 1951,
showed a cash balance of P5,851.17 and pending obligations in the amount
of P6,165.03.

The heirs of Quintin de Borja again opposed the approval of these
statements of accounts charging the administrator with having failed to
include the fruits which the estate should have accrued from 1941 to 1951
amounting to P479,429.70, but as the other heirs seemed satisfied with the
accounts presented by said administrator and as their group was only one of
the 4 heirs of Intestate Estate, they prayed that the administrator be held
liable for only P119,932.42 which was 1/4 of the amount alleged to have been
omitted. On October 4, 1951, the administrator filed a reply to said opposition
containing a counterclaim for moral damages against all the heirs of Quintin
de deBorja in the sum of P30,000 which was admitted by the Court over the
objection of the heirs of Quintin de Borja that the said pleading was filed out of
time.
The oppositors, the heirs of Quintin de Borja, then filed their answer to
the counterclaim denying the charges therein, but later served interrogatories
on the administrator relative to the averments of said counterclaim. Upon
receipt of the answer to said interrogatories specifying the acts upon which
the claim for moral damages was based, the oppositors filed an amended
answer contending that inasmuch as the acts, manifestations and pleadings
referred to therein were admittedly committed and prepared by their lawyer,
Atty. Amador E. Gomez, same cannot be made the basis of a counterclaim,
said lawyer not being a party to the action, and furthermore, as the acts upon
which the claim for moral damages were based had been committed prior to
the effectivity of the new Civil Code, the provisions of said Code on moral
damages could not be invoked. On January 15, 1952, the administrator filed
an amended counterclaim including the counsel for the oppositors as
defendant.
There followed a momentary respite in the proceedings until another
judge was assigned to preside over said court to dispose of the old cases
pending therein. On August 15, 1952, Judge Encarnacion issued an order
denying admission to administrator's amended counterclaim directed against
the lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to
the action, cannot be made answerable for counterclaims. Another order was
also issued on the same date dismissing the administrator's counterclaim for
moral damages against the heirs of Quintin de Borja and their counsel for the
alleged defamatory acts, manifestations and utterances, and stating that
granting the same to be meritorious, yet it was a strictly private controversy
between said heirs and the administrator which would not in any way affect
the interest of the Intestate, and, therefore, not proper in an intestate
proceedings. The Court stressed that to allow the ventilation of such personal
controversies would further delay the proceedings in the case which had
already lagged for almost 30 years, a situation which the Court would not
countenance.
Having disposed of these pending incidents which arose out of the
principal issue, that is, the disputed statement of accounts submitted by the
administrator, the Court rendered judgment on September 5, 1952, ordering
the administrator to distribute the funds in his possession to the heirs as
follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco
de Borja; P314.99 to the Estate of Juliana de Borja and P314.99 to Miguel B.
Dayco, but as the latter still owed the intestate the sum of P900, said heirs
was ordered to pay instead the 3 others the sum of P146.05 each. After
considering the testimonies of the witnesses presented by both parties and
the available records on hand, the Court found the administrator guilty of
maladministration and sentenced Crisanto de Borja to pay to the oppositors,
the heirs of Quintin deBorja, the sum of P83,337.31, which was 1/4 of the
amount which the estate lost, with legal interest from the date of the judgment.
On the same day, the Court also issued an order requiring the administrator to
deliver to the Clerk of that Court PNB Certificate of Deposit No. 211649 for
P978.50 which was issued in the name of Quintin deBorja.
The administrator, Dr. Crisanto de Borja, gave notice to appeal from the
lower Court's orders of August 15, 1952, the decision of September 5, 1952,
and the order of even date, but when the Record on Appeal was finally
approved, the Court ordered the exclusion of the appeal from the order of
September 5, 1952, requiring the administrator to deposit the PNB Certificate
of Deposit No. 211649 with the Clerk of Court, after the oppositors had shown
that during the hearing of that incident, the parties agreed to abide by
whatever resolution the Court would make on the ownership of the funds
covered by that deposit.
The issues. Reducing the issues to bare essentials, the questions
left for our determination are: (1) whether the counsel for a party in a case
may be included as a defendant in a counterclaim; (2) whether a claim for
moral damages may be entertained in a proceeding for the settlement of an
estate; (3) what may be considered as acts of maladministration and whether
an administrator, as the one in the case at bar, may be held accountable for
any loss or damage that the estate under his administration may incur by
reason of his negligence, bad faith or acts of maladministration; and (4) in the
case at bar has the Intestate or any of the heirs suffered any loss or damage
by reason of the administrator's negligence, bad faith or maladministration? If
so, what is the amount of such loss or damage?
I. Section 1, Rule 10, of the Rules of Court defines a counterclaim
as:
SECTION 1.Counterclaim Defined. A counterclaim is any
claim, whether for money or otherwise, which a party may have against
the opposing party. A counterclaim need not diminish or defeat the
recovery sought by the opposing party, but may claim relief exceeding in
amount or different in kind from that sought by the opposing party's
claim.
It is an elementary rule of procedure that a counterclaim is a relief
available to a party-defendant against the adverse party which may or may
not be independent from the main issue. There is no controversy in the case
at bar, that the acts, manifestations and actuations alleged to be defamatory
and upon which the counterclaim was based were done or prepared by
counsel for oppositors; and the administrator contends that as the very
oppositors manifested that whatever civil liability arising from acts, actuations,
pleadings and manifestations attributable to their lawyer is enforceable
against said lawyer, the amended counterclaim was filed against the latter not
in his individual or personal capacity but as counsel for the oppositors. It is his
stand, therefore, that the lower court erred in denying admission to said
pleading. We differ from the view taken by the administrator. The appearance
of a lawyer as counsel for a party and his participation in a case as such
counsel does not make him a party to the action. The fact that he represents
the interests of his client or that he acts in their behalf will not hold him liable
for or make him entitled to any award that the Court may adjudicate to the
parties, other than his professional fees. The principle that a counterclaim
cannot be filed against persons who are acting in representation of another
such as trustees in their individual capacities (Chambers vs. Cameron, 2
Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied with more force
and effect in the case of a counsel whose participation in the action is merely
confined to the preparation of the defense of his client. Appellant, however,
asserted that he filed the counterclaim against said lawyer not in his individual
capacity but as counsel for the heirs of Quintin de Borja. But as we have
already stated that the existence of a lawyer-client relationship does not make
the former a party to the action, even this allegation of appellant will not alter
the result We have arrived at.
Granting that the lawyer really employed intemperate language in the
course of the hearings or in the preparation of the pleadings filed in
connection with this case, the remedy against said counsel would be to have
him cited for contempt of court or take other administrative measures that may
be proper in the case, but certainly not a counterclaim for moral damages.
II. Special Proceedings No. 6414 of the Court of First Instance of
Rizal (Pasig branch) was instituted for the purpose of settling the Intestate
Estate of Marcelo deBorja. In taking cognizance of the case, the Court was
clothed with a limited jurisdiction which cannot expand to collateral matters
not arising out of or in any way related to the settlement and adjudication of
the properties of the deceased, for it is a settled rule that the jurisdiction of a
probate court is limited and special (Guzman vs. Anog, 37 Phil. 361). Although
there is a tendency now to relax this rule and extend the jurisdiction of the probate court
in respect to matters incidental and collateral to the exercise of its recognized powers
(14 Am. Jur. 251-252), this should be understood to comprehend only cases related to
those powers specifically allowed by the statutes. For it was even said that:
"Probate proceedings are purely statutory and their functions
limited to the control of the property upon the death of its owner, and
cannot extend to the adjudication of collateral questions" (Woesmes,
The American Law of Administration, Vol. I, p. 514, 662- 663).
It was in the acknowledgment of its limited jurisdiction that the lower
court dismissed the administrator's counterclaim for moral damages against
the oppositors, particularly against Marcela de Borja who allegedly uttered
derogatory remarks intended to cast dishonor to said administrator sometime
in 1950 or 1951, his Honor's ground being that the court exercising limited
jurisdiction cannot entertain claims of this kind which should properly belong
to a court of general jurisdiction. From whatever angle it may be looked at, a
counterclaim for moral damages demanded by an administrator against the
heirs for alleged utterances, pleadings and actuations made in the course of
the proceeding, is an extraneous matter in a testate or intestate proceedings.
The injection into the action of incidental questions entirely foreign in probate
proceedings should not be encouraged for to do otherwise would run counter
to the clear intention of the law, for it was held that:

"The speedy settlement of the estate of deceased persons for the
benefit of the creditors and those entitled to the residue by way of
inheritance or legacy after the debts and expenses of administration
have been paid, is the ruling spirit of our probate law"
(Magbanua vs. Akel, 72 Phil., 567, 40 Off. Gaz., 1871).
III. and IV. This appeal arose from the opposition of the heirs of
Quintin de Borja to the approval of the statements of accounts rendered by
the administrator of the Intestate Estate of Marcelo de Borja, on the ground
that certain fruits which should have accrued to the estate were unaccounted
for, which charge the administrator denied. After a protracted and extensive
hearing on the matter, the Court, finding the administrator, Dr. Crisanto
de Borja, guilty of certain acts of maladministration, held him liable for the
payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the
unreported income which the estate should have received. The evidence
presented in the court below bear out the following facts:
(a)The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547,
1549 and 1551 in Azcarraga Street, Manila, situated in front of the Arranque
market. Of this property, the administrator reported to have received for the
estate the following rentals:
Period of TimeTotal rentalsUnnual
monthly rental
March to December, 1945P3,085.00P51.42
January to December, 19464,980.0069.17
January to December, 19478,330.00115.70
January to December, 19489,000.00125.00
January to December, 19498,840.00122.77
January to December, 19506,060.00184.16
TOTALP40,295.00
The oppositors, in disputing this reported income, presented at the
witness stand Lauro Aguila, a lawyer who occupied the basement of Door No.
1541 and the whole of Door No. 1543 from 1945 to November 15, 1949, and
who testified that he paid rentals on said apartments as follows:
1945
Door No. 1541 (basement)
FebruaryP20.00Door No. 1543
March20.00For 7 months at P300
April60.00a monthP2,100.00
May-December800.00
TotalP900.00
1946
January-DecemberP1,200.00January-DecemberP4,080.00
1947
JanuaryP100.00JanuaryP380.00
February100.00February380 00
March180.00March 1-15190.00
April-December1,440.00March 16-December4,085.00
1,820.00P5,035.00
1948
January-DecemberP1,920.00January-DecemberP5,150.00
1949
January-November 15P1,680.00January-DecemberP4,315.00
From the testimony of said witness, it appears that from 1945 to
November 15, 1949, he paid a total of P28,200 for the lease of Door No. 1543
and the basement of Door No. 1541. These figures were not controverted or
disputed by the administrator but claimed that said tenant subleased the
apartments occupied by Pedro Enriquez and Soledad Sodora and paid the
said rentals, not to the administrator, but to said Enriquez. The transcript of
the testimony of this witness really bolster this contention - that Lauro Aguila
talked with said Pedro Enriquez when he leased the aforementioned
apartments and admitted paying the rentals to the latter and not to the
administrator. It is interesting to note that Pedro Enriquez is the same person
who appeared to be the administrator's collector, duly authorized to receive
the rentals from this Azcarraga property and for which services, said Enriquez
received 5 per cent of the amount he might be able to collect as commission.
If we are to believe appellant's contention, aside from the commission that
Pedro Enriquez received he also sublet the apartments he was occupying at a
very much higher rate than that he actually paid the estate without the
knowledge of the administrator or with his approval. As the administrator also
seemed to possess that peculiar habit of giving little importance to
bookkeeping methods, for he never kept a ledger or book of entry for amounts
received for the estate, We find no record of the rentals the lessees of the
other doors were paying. It was, however, brought about at the hearing that
the 6 doors of this building are of the same sizes and construction and the
lower Court based its computation of the amount this property should have
earned for the estate on the rental paid by Atty. Aguila for the 1 1/2 doors that
he occupied. We see no excuse why the administrator could not have taken
cognizance of these rates and received the same for the benefit of the estate
he was administering, considering the fact that he used to make trips to
Manila usually once a month and for which he charged to the estate P8 as
transportation expenses for every trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate
would have received P112,800 from February 1, 1945, to November 15, 1949,
for the 6 doors, but the lower Court held him accountable not only for the sum
of P34,235 reported for the period ranging from March 1, 1945, to December
31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record
shows, however that the upper floor of Door No. 1549 was vacant in
September, 1949, and as Atty. Aguila used to pay P390 a month for the use
of an entire apartment from September to November, 1949, and he also paid
P160 for the use of the basement of an apartment (Door No. 1541), the use,
therefore, of said upper floor would cost P230 which should be deducted,
even if the computation of the lower Court would have to be followed.
There being no proper evidence to show that the administrator collected
more rentals than those reported by him, except in the instance already
mentioned, We are reluctant to hold him accountable in the amount for which
he was held liable by the lower Court, and We think that under the
circumstances it would be more just to add to the sum reported by the
administrator as received by him as rents for 1945-1949 only, the difference
between the sum reported as paid by Atty. Aguila and the sum actually paid
by the latter as rents of 1 1/2 of the apartments during the said period, or
P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.
The record also shows that in July, 1950, the administrator delivered to
the other heirs Doors Nos. 1545, 1547, 1549 and 1551 although Doors Nos.
1541 and 1543 adjudicated to the oppositors remained under his
administration. For the period from January to June, 1950, that the entire
property was still administered by him, the administrator reported to have
received for the 2 oppositors' apartments for said period of six months at
P168.33 a month, the sum of P1,010 which belongs to the oppositors and
should be taken from the amount reported by the administrator.
The lower Court computed at P40 a month the pre-war rental admittedly
received for every apartment, the income that said property would have
earned from 1941 to 1944, or a total of P11,520, but as We have to exclude
the period covered by the Japanese occupation, the estate should receive
only P2,880 1/4 of which P720 the administrator should pay to the oppositors
for the year 1941.
(b)The Intestate estate also owned a parcel of land in Mayapyap,
Nueva Ecija, with an area of 71 hectares, 95 ares and 4 centares, acquired by
Quintin de Borjafrom the spouses Cornelio Sarangaya and Feliciana Mariano
in Civil Case No. 6190 of the Court of First Instance of said province. In virtue
of the agreement entered into by the heirs, this property was turned over by
the estate of Quintin de Borja to the intestate and formed part of the general
mass of said estate. The report of the administrator failed to disclose any
return from this property alleging that he had not taken possession of the
same. He does not deny however that he knew of the existence of this land
but claimed that when he demanded the delivery of the Certificate of Title
covering this property, Rogelio Limaco, then administrator of the estate of
Quintin de Borja, refused to surrender the same and he did not take any
further action to recover the same.
To counteract the insinuation that the Estate of Quintin de Borja was in
possession of this property from 1940 to 1950, the oppositors presented
several witnesses, among them was an old man, Narciso Punzal, who
testified that he knew both Quintin and Francisco de Borja; that before the war
or sometime in 1937, the former administrator of the Intestate, Quintin
de Borja, offered him the position of overseer (encargado) of this land but he
was not able to assume the same due to the death of said administrator; that
on July 7, 1951, herein appellant invited him to go to his house in Pateros,
Rizal, and while in said house, he was instructed by appellant to testify in
court next day that he was the overseer of the Mayapyap property for Quintin
de Borja from 1937-1944, delivering the yearly proceeds of 1,000 cavanes of
palay to Rogelio Limaco; that he did not need to be afraid because both
Quintin de Borja and Rogelio Limaco were already dead. But as he knew that
the facts on which he was to testify were false, he went instead to the house
of one of the daughters of Quintin de Borja, who, together with her brother,
Atty. Juan de Borja, accompanied him to the house of the counsel for said
oppositors before whom his sworn declaration was taken (Exh. 3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz
and Ernesto Mangulabnan, testified that they were some of the tenants of the
Mayapyap property; that they were paying their shares to the overseers of
Francisco de Borja and sometimes to his wife, which the administrator was
not able to contradict, and the lower Court found no reason why the
administrator would fail to take possession of this property considering that
this was even the subject of the agreement of February 16, 1940, executed by
the heirs of the Intestate.
The lower Court, giving due credence to the testimonies of the
witnesses for the oppositors, computed the loss the estate suffered in the
form of unreported income from the rice lands for 10 years at P67,000 (6,700
a year) and the amount of P4,000 from the remaining portion of the land not
devoted to rice cultivation which was being leased at P20 per hectare.
Consequently, the Court held the administrator liable to appellees in the sum
of P17,750 which is 1/4, of the total amount which should have accrued to the
estate for this item.

But if We exclude the 3 years of occupation, the income for 7 years
would be P46,900 for the ricelands and P2,800 (at P400 a year) for the
remaining portion not devoted to rice cultivation or a total of P48,700, 1/4 of
which is P12,175 which We hold the administrator liable to the oppositors.
(c)The Hacienda Jalajala located in said town of Rizal, was divided into
3 parts: the Punta section belonged to Marcelo de Borja, the Bagombong
pertained to Bernardo de Borja and Francisco de Borja got the Jalajala
proper. For the purpose of this case, we will just deal with that part called
Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares
(Exh. 36) of which, according to the surveyor who measured the same, 200
hectares were of cultivated rice fields and 100 hectares dedicated to the
planting of upland rice. It has also timberland and forest which produce
considerable amount of trees and firewoods. From the said property which
has an assessed value of P115,000 and for which the estates pay real estate
tax of P1,500 annually, the administrator reported the following.
Expenditures
(not including
administration's
YearIncomefees.
1945P625.00P1,310.42
19461,800.003,471.00
19472,550.002,912.91
19481,828.003,311.88
19493,204.504,792.09
19502,082.002,940.91
P12,089.50P18,739.21
This statement was assailed by the oppositors and to substantiate their
charge that the administrator did not file the true income of the property, they
presented several witnesses who testified that there were about 200 tenants
working therein, that these tenants paid to Crisanto de Borja rentals at the
rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the
Japanese were the ones who collected their rentals, and that the estate could
have received no less than 1,000 cavanes of palay yearly. After the
administrator had presented witnesses to refute the facts previously testified
to by the witnesses for the oppositors, the Court held that the report of the
administrator did not contain the real income of the property devoted to rice
cultivation, which was fixed at 1,000 cavanes every year for 1941, 1942,
1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000 cavanes valued at
P73,000. But as the administrator accounted for the sum of P11,155 collected
from rice harvests and if to this amount we add the sum of P8,739.20 for
expenses, this will make a total of P19,894.20, thus leaving a deficit of
P53,105.80, 1/4 of which will be P13,276.45 which the administrator is held
liable to pay the heirs of Quintin de Borja.
It was also proved during the hearing that the forestland of this property
yields considerable amount of marketable firewoods. Taking into
consideration the testimonies of witnesses for both parties, the Court arrived
at the conclusion that the administrator sold to Gregorio Santos firewoods
worth P600 in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300.
As the report included only the amount of P625, there was a balance of
P7,675 in favor of the estate. The oppositors were not able to present any
proof of sales made after these years, if there were any and the administrator
was held accountable to the oppositors for only P1,918.75.
(d)The estate also owned ricefields in Cainta, Rizal, with a total area of
22 hectares, 76 ares and 66 centares. Of this particular item, the administrator
reported an income of P12,104 from 1945 to 1951. The oppositors protested
against this report and presented witnesses to disprove the same.
Basilio Javier worked as a tenant in the land of Juliana de Borja which
is near the land belonging to the Intestate, the 2 properties being separated
only by a river. As tenant of Juliana de Borja, he knew the tenants working on
the property and also knows that both lands are of the same class, and that
an area accommodating one cavan of seedlings yields at most 100 cavanes
and 60 cavanes at the least. The administrator failed to overcome this
testimony. The lower Court considering the facts testified to by this witness
made a finding that the property belonging to this Intestate was actually
occupied by several persons accommodating 13 1/2 cavanes of seedlings;
that as for every cavan of seedlings, the land produces 60 cavanes of palay,
the whole area under cultivation would have yielded 810 cavanes a year and
under the 50-50 sharing system (which was testified to by witness Javier), the
estate should have received no less than 405 cavanes every year. Now, for
the period of 7 years from 1941 to 1950, excluding the 3 years of war
the corresponding earning of the estate should be 2,835 cavanes, out of
which the 405 cavanes from the harvest of 1941 is valued at P1,215 and the
rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from
this amount the reported income of P12,104 is deducted, there will be a
balance of P13,411.10 1/4, of which or P3,352.75 the administrator is held
liable to pay to the oppositors.
(e)The records show that the administrator paid surcharges and
penalties with a total of P988.75 for his failure to pay on time the taxes
imposed on the properties under his administration. He advanced the reason
that he lagged in the payment of those tax obligations because of lack of cash
balance for the estate. The oppositors, however, presented evidence that on
October 29, 1939, the administrator received from Juliana de Borja the sum of
P20,475.17 together with certain papers pertaining to the intestate (Exh. 4),
aside from the checks in the name of Quintin de Borja. Likewise, for his failure
to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said
property was sold at public auction and the administrator had to redeem the
same at P3,295.48, although the amount that should have been paid was only
P2,917.26. The estate therefore suffered a loss of P378.22. Attributing these
surcharges and penalties to the negligence of the administrator, the lower
Court adjudged him liable to pay the oppositors 1/4 of P1,366.97, the total
loss suffered by the Intestate, or P341.74.
(f)Sometime in 1942, a big fire razed numerous houses in Pateros,
Rizal, including that of Dr. Crisanto de Borja. Thereafter, he claimed that
among the properties burned therein was his safe containing P15,000
belonging to the estate under his administration. The administrator contended
that this loss was already proved to the satisfaction of the Court who
approved the same by order of January 8, 1943, purportedly issued by Judge
Servillano Platon (Exh. B). The oppositors contested the genuineness of this
order and presented on April 21, 1950, an expert witness who conducted
several tests to determine the probable age of the questioned document, and
arrived at the conclusion that the questioned ink writing "(Fdo)" appearing at
the bottom of Exhibit B cannot be more than 4 years old (Exh. 39). However,
another expert witness presented by the administrator contradicted this
finding and testified that this conclusion arrived at by expert witness Mr. Pedro
Manzaares was not supported by authorities and was merely the result of his
own theory, as there was no method yet discovered that would determine the
age of a document, for every document has its own reaction to different
chemicals used in the tests. There is, however, another fact that called the
attention of the lower Court: the administrator testified that the money and
other papers delivered by Juliana de Borja to him on October 29, 1939, were
saved from said fire. The administrator justified the existence of these
valuables by asserting that these properties were locked by Juliana
de Borja in her drawer in the "casa solariega" in Pateros and hence was not in
his safe when his house, together with the safe, was burned. This line of
reasoning is really subject to doubt and the lower Court opined, that it runs
counter to the ordinary course of human behavior for an administrator to leave
in the drawer of the "aparador" of Juliana de Borja the money and other
documents belonging to the estate under his administration, which delivery
has receipted for, rather than to keep it in his safe together with the alleged
P15,000 also belonging to the Intestate. The subsequent orders of Judge
Platon also put the defense of appellant to bad light, for on February 6, 1943,
the Court required Crisanto de Borja to appear before the Court of
examination of the other heirs in connection with the reported loss, and on
March 1, 1943, authorized the lawyers for the other parties to inspect the safe
allegedly burned (Exh. 35). It is inconceivable that Judge Platon would still
order the inspection of the safe if there was really an order approving the loss
of those P15,000. We must not forget, in this connection, that the records of
this case were burned and that at the time of the hearing of this incident in
1951, Judge Platon was already dead. The lower Court also found no reason
why the administrator should keep in his possession such amount of money,
for ordinary prudence would dictate that as an administration funds that come
into his possession in a fiduciary capacity should not be mingled with his
personal funds and should have been deposited in the Bank in the name of
the intestate. The administrator was held responsible for this loss and ordered
to pay 1/4 thereof, or the sum of P3,750.
(g)Unauthorized expenditures
1.The report of the administrator contained certain sums amounting to
P2,130 paid to and receipted by Juanita V. Jarencio the administrator's wife,
as his private secretary. In explaining this item, the administrator alleged that
he needed her services to keep receipts and records for him, and that he did
not secure first the authorization from the court before making these
disbursements because it was merely a pure administrative function.
The keeping of receipts and retaining in his custody records connected
with the management of the properties under administration is a duty that
properly belongs to the administrator, necessary to support the statement of
accounts that he is obliged to submit to the court for approval. If ever his wife
took charge of the safekeeping of these receipts and for which she should be
compensated, the same should be taken from his fee. This disbursement was
disallowed by the Court for being unauthorized and the administrator required
to pay the oppositors 1/4 thereof or P532.50.

2.The salaries of Pedro Enriquez, as collector of the Azcarraga
property; of Briccio Matienzo and Leoncio Perez, as encargados, and of
Vicente Panganiban and Herminigildo Macetas as forest-guards were found
justified, although unauthorized, as they appear to be reasonable and
necessary for the care and preservation of the Intestate.
3.The lower Court disallowed as unjustified and unnecessary the
expenses for salaries paid to special policemen amounting to P1,509.
Appellant contended that he sought for the services of Macario Kamungol and
others to act as special policemen during harvest time because most of the
workers tilling the Punta property were not natives of Jalajala but of the
neighboring towns and they were likely to run away with the harvest without
giving the share of the estate if they were not policed. This kind of reasoning
did not appear to be convincing to the trial judge as the cause for such fear
seemed to exist only in the imagination. Granting that such kind of situation
existed, the proper thing for the administrator to do would have been to
secure the previous authorization from the Court if he failed to secure the help
of the local police. He should be held liable for this unauthorized expenditure
and pay the heirs of Quintin de Borja 1/4 thereof or P377.25.
4.From the year 1942 when his house was burned, the administrator
and his family took shelter at the house belonging to the Intestate known as
"casa solariega" which, in the Project of Partition, was adjudicated to his
father, Francisco de Borja. This property, however, remained under his
administration and for its repairs he spent from 1945-1950, P1,465.14, duly
receipted.
None of these repairs appear to be extraordinary for the receipts were
for nipa, for carpenters and thatchers. Although it is true that Rule 85, Section
2 provides that:
SEC. 2.EXECUTOR OR ADMINISTRATOR TO KEEP
BUILDINGS IN REPAIR. An executor or administrator shall maintain
in tenantable repair the houses and other structures and fences
belonging to the estate, and deliver the same in such repair to the heirs
or devisees when directed so to do by the court.
yet considering that during his occupancy of the said "casa solariega" he was
not paying any rental at all, it is but reasonable that he should take care of the
expenses for the ordinary repair of said house. Appellant asserted that had he
and his family not occupied the same, they would have to pay someone to
watch and take care of said house. But this will not excuse him from this
responsibility for the disbursements he made in connection with the
aforementioned repairs because even if he stayed in another house, he would
have had to pay rentals or else take charge also of expenses for the repairs of
his residence. The administrator should be held liable to the oppositors in the
amount of P366.28.
5.Appellant reported to have incurred expenses amounting to
P6,304.75 for alleged repairs on the rice mill in Pateros, also belonging to the
Intestate. Of the disbursements made therein, the items corresponding, to
Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70
were rejected by the lower court on the ground that they were all unsigned
although some were dated. The lower Court, however, made an oversight in
including the sum of P150 covered by Exhibit L-26 which was duly signed by
Claudio Reyes because this does not refer to the repair of the rice-mill but for
the roofing of the house and another building and shall be allowed.
Consequently, the sum of P570.70 shall be reduced to P420.70 which added
to the sum of P3,059 representing expenditures rejected as unauthorized to
wit:
Exhibit L-59P500.00Yek Wing
Exhibit L-60616.00Yek Wing
Exhibit L-61600.00Yek Wing
Exhibit L-62840.00Yek Wing
Exhibit L-63180.00Yek Wing
Exhibit Q-2323.00scale "Howe"
TotalP3,059.00
will give a total of P3,479 1/4 of which is P869.92 that belongs to the
oppositors.
6.On the reported expenses for planting in the Cainta ricefields: In
his statement of accounts, appellant reported to have incurred a total expense
of P5,977 for the planting of the ricefields in Cainta, Rizal, from the agricultural
year 1945-46 to 1950-51. It was proved that the prevailing sharing system in
this part of the country was on 50-50 basis. Appellant admitted that expenses
for planting were advanced by the estate and liquidated after each harvest.
But the report, except for the agricultural year 1950 contained nothing of the
payments that the tenants should have made. If the total expenses for said
planting amounted to P5,977, 1/2 thereof or P2,988.50 should have been paid
by the tenants as their share of such expenditures, and as P965 was reported
by the administrator as paid back in 1950, there still remains a balance of
P2,023.50 unaccounted for. For this shortage, the administrator is responsible
and should pay the oppositors 1/4 thereof or P505.87.
7.On the transportation expenses of the administrator: It appears
that from the year 1945 to 1951, the administrator charged the estate with a
total of P5,170 for transportation expenses. The unreceipted disbursements
were correspondingly itemized, a typical example of which is as follows:
"1950
"Gastos de viaje del administrador
"From Pateros
"To Pasig50 x P 4.00 = P200.00
"To Manila50 x P10.00 = P500.00
"To Cainta8 x P 8.00 = P 64.00
"To Jalajala5 x P35.00 = P175.00
P939.00"
(Exhibit W-54)
From the report of the administrator, We are being made to believe that the
Intestate estate is a losing proposition and assuming arguendo that this is
true, that precarious financial condition which he, as administrator, should
know, did not deter Crisanto de Borja from charging to the depleted funds of
the estate comparatively big amounts for his transportation expenses.
Appellant tried to justify these charges by contending that he used his own car
in making those trips to Manila, Pasig and Cainta and a launch in visiting the
properties in Jalajala, and they were for the gasoline consumed. This rather
unreasonable spending of the estate's fund prompted the Court to observe
that one will have to spend only P0.40 for transportation in making a trip from
Pateros to Manila and practically the same amount in going to Pasig. From his
report for 1949 alone, appellant made a total of 97 trips to these places or an
average of one trip for every 3 1/2 days. Yet We must not forget that it was
during this period that the administrator failed or refused to take cognizance of
the prevailing rentals of commercial places in Manila that caused certain loss
to the estate and for which he was accordingly held responsible. For the
reason that the alleged disbursements made for transportation expenses
cannot be said to be economical, the lower Court held that the administrator
should be held liable to the oppositors for 1/4 thereof or the sum of P1,292.50,
though We think that this sum should still be reduced to P500.
8.Other expenses:
The administrator also ordered 40 booklets of printed contracts of lease
in the name of the Hacienda Jalajala which cost P150. As the
said hacienda was divided into 3 parts, one belonging to this Intestate and the
other two parts to Francisco de Borja and Bernardo de Borja, ordinarily the
Intestate should only shoulder 1/3 of the said expense, but as the tenants who
testified during the hearing of the matter testified that those printed forms
were not being used, the Court adjudged the administrator personally
responsible for this amount. The records reveal, however, that this printed
form was not utilized because the tenants refused to sign any, and We can
presume that when the administrator ordered for the printing of the same, he
did not foresee this situation. As there is no showing that said printed
contracts were used by another and that they are still in the possession of the
administrator which could be utilized anytime, this disbursement may be
allowed.
The report also contains a receipt of payment made to Mr. Severo
Abellera in the sum of P375 for his transportation expenses as one of the two
commissioners who prepared the Project of Partition. The oppositors were
able to prove that on May 24, 1941, the Court authorized the administrator to
withdraw from the funds of the Intestate the sum of P300 to defray the
transportation expenses of the commissioners. The administrator, however,
alleged that he used this amount for the payment of certain fees necessary in
connection with the approval of the proposed plan of the Azcarraga property
which was then being processed in the City Engineer's Office. From that
testimony, it would seem that appellant could even go to the extent of
disobeying the order of the Court specifying for what purpose that amount
should be appropriated and took upon himself the task of judging for what it
will serve best. Since he was not able to show or prove that the money
intended and ordered by the Court to be paid for the transportation expenses
of the commissioners was spent for the benefit of the estate as claimed, the
administrator should be held responsible therefor and pay to the oppositors
1/4 of P375 or the sum of P93.75.
The records reveal that for the service of summons to the defendants in
Civil Case No. 84 of the Court of First Instance of Rizal, P104 was paid to the
Provincial Sheriff of the same province (Exhibit H-7). However, an item for
P40 appeared to have been paid to the Chief of Police of Jalajala allegedly for
the service of the same summons. Appellant claimed that as the defendants
in said case lived in remote barrios, the services of the Chief of Police as
delegate or agent of the Provincial Sheriff were necessary. He forgot probably
the fact that local chiefs of police are deputy sheriffs ex-officio. The
administrator was therefore ordered by the lower Court to pay 1/4 of said
amount or P10 to the oppositors.
The administrator included in his Report the sum of P550 paid to Atty.
Filamor for his professional services rendered for the defense of the
administrator in G. R. No. L-4179, which was decided against him, with costs.
The lower Court disallowed this disbursement on the ground that this Court
provided that the costs of that litigation should not be borne by the estate but
by the administrator himself, personally.

Costs of a litigation in the Supreme Court taxed by the Clerk of Court,
after a verified petition has been filed by the prevailing party, shall be awarded
to said party and will only include his fee and that of his attorney for their
appearance which shall not be more than P40; expenses for the printing and
the copies of the record on appeal; all lawful charges imposed by the Clerk of
Court; fees for the taking of depositions and other expenses connected with
the appearance of witnesses or for lawful fees of a commissioner (De la Cruz,
Philippine Supreme Court Practice, p. 70-71). If the costs provided for in that
case, which this Court ordered to be chargeable personally against the
administrator are not recoverable by the latter, with more reason this item
could not be charged against the Intestate. Consequently, the administrator
should pay the oppositors 1/4 of the sum of P550 or P137.50.
(e)The lower Court in its decision required appellant to pay the
oppositors the sum of P1,395 out of the funds still in the possession of the
administrator.
In the statement of accounts submitted by the administrator, there
appeared a cash balance of P5,851.17 as of August 31, 1951. From this
amount, the sum of P1,002.96 representing the Certificate of Deposit No.
21619 and Check No. 57338, both of the Philippine National Bank and in the
name of Quintin de Borja, was deducted leaving a balance of P4,848. As
Judge Zulueta ordered the delivery to the oppositors of the amount of P1,890
in his order of October 8, 1951; the delivery of the amount of P810 to the
estate of Juliana de Borja in his order of October 23, 1951, and the sum of
P932.32 to the same estate of Juliana de Borja by order of the Court of
February 29, 1952, or a total of P3,632.32 after deducting the same from the
cash in the possession of the administrator, there will only be a remainder of
P134.98.
The Intestate is also the creditor of Miguel B. Dayco, heir and
administrator of the estate of Crisanta de Borja, in the sum of P900 (Exhibits
S and S-1). Adding this credit to the actual cash on hand, there will be a total
of P1,034.98, 1/4 of which or P258.74 properly belongs to the oppositors.
However, as there is only a residue of P134.98 in the hands of the
administrator and dividing it among the 3 groups of heirs who are not indebted
to the Intestate, each group will receive P44.99, and Miguel B. Dayco is under
obligation to reimburse P213.76 to each of them.
The lower Court ordered the administrator to deliver to the oppositors
the amount of P1,395.90 and P314.99 each to Francisco de Borja and the
estate of Juliana deBorja, but as We have arrived at the computation that the
three heirs not indebted to the Intestate ought to receive P44.99 each out of
the amount of P134.98, the oppositors are entitled to the sum of P1,080.91
the amount deducted from them as taxes but which the Court ordered to be
returned to them plus P44.99 or a total of P1,125.90. It appearing,
however, that in a Joint Motion dated November 27, 1952, duly approved by
the Court, the parties agreed to fix the amount at P1,125.58, as the amount
due and said heirs have already received this amount in satisfaction of this
item, no other sum can be chargeable against the administrator.
(f)The probate Court also ordered the administrator to render an
accounting of his administration during the Japanese occupation on the
ground that although appellant maintained that whatever money he received
during that period is worthless, same having been declared without any value,
yet during the early years of the war, or during 1942-43, the Philippine peso
was still in circulation, and articles of prime necessity as rice and firewood
commanded high prices and were paid with jewels or other valuables.
But We must not forget that in his order of December 11, 1945, Judge
Pea required the administrator to render an accounting of his administration
only from March 1, 1945, to December of the same year without ordering said
administrator to include therein the occupation period. Although the Court
below mentioned the condition then prevailing during the war-years, We
cannot simply presume, in the absence of proof to that effect, that the
administrator received such valuables or properties for the use or in exchange
of any asset or produce of the Intestate, and in view of the aforementioned
order of Judge Pea, which We find no reason to disturb, We see no practical
reason for requiring appellant to account for those occupation years when
everything was affected by the abnormal conditions created by the war. The
records of the Philippine National Bank show that there was a current account
jointly in the names of Crisanto de Borja and Juanita V. Jarencio, his wife,
with a balance of P36,750.35 in Japanese military notes and admittedly
belonging to the Intestate and We do not believe that the oppositors or any of
the heirs would be interested in an accounting for the purpose of dividing or
distributing this deposit.
(g)On the sum of P13,294 for administrator's fees:
It is not disputed that the administrator set aside for himself and
collected from the estate the sum of P13,294 as his fees from 1945 to 1951 at
the rate of P2,400 a year. There is also no controversy as to the fact that this
appropriated amount was taken without the order or previous approval by the
probate Court. Neither is there any doubt that the administration of the
Intestate estate by Crisanto de Borja is far from satisfactory.
Yet it is a fact that Crisanto de Borja exercised the functions of an
administrator and is entitled also to a certain amount as compensation for the
work and services he has rendered as such. Now, considering the extent and
size of the estate, the amount involved and the nature of the properties under
administration, the amount collected by the administrator for his compensation
at P200 a month is not unreasonable and should therefore be allowed.
It might be argued against this disbursement that the records are
replete with instances of highly irregular practices of the administrator, such
as the pretended ignorance of the necessity of a book or ledger or at least a
list of chronological and dated entries of money or produce the Intestate
acquired and the amount of disbursements made for the same properties; that
admittedly he did not have even a list of the names of the lessees to the
properties under his administration, nor even a list of those who owed back
rentals, and although We certainly agree with the probate Court in finding
appellant guilty of acts of maladministration, specifically in mixing the funds of
the estate under his administration with his personal funds instead of keeping
a current account for the Intestate in his capacity as administrator, We are of
the opinion that despite these irregular practices for which he was held
already liable and made in some instances to reimburse the Intestate for
amounts that were not properly accounted for, his claim for compensation as
administrator's fees shall be as they are hereby allowed.
Recapitulation. Taking all the matters threshed herein together, the
administrator is held liable to pay to the heirs of Quintin de Borja the following:
Under Paragraphs III and IV:
(a)P7,084.27
(b)12,175.00
(c)16,113.95
(d)3,352.75
(e)341.74
(f)3,750.00
(g)1.532.50
2.377.25
4.366.28
5.869.92
6.505.87
7.500.00
8-a.
b.93.75
c.10.00
d.137.50
P46,210.78
In view of the foregoing, the decision appealed from is modified by
reducing the amount that the administrator was sentenced to pay the
oppositors to the sum of P46,210.78 (instead of P83,337.31), plus legal
interests on this amount from the date of the decision appealed from, which is
hereby affirmed in all other respects. Without pronouncement as to costs. It is
so ordered.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo,
Labrador, Concepcion and Endencia, JJ., concur.

||| (De Borja v. De Borja, G.R. No. L-6622, July 31, 1957)
FIRST DIVISION
[G.R. No. L-41715. June 18, 1976.]
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor)
and PONCIANO BONILLA (their father) who represents the
minors, petitioners, vs. LEONBARCENA, MAXIMA ARIAS
BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON.
LEOPOLDO GIRONELLA of the Court First Instance of
Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
SYNOPSIS
On March 31, 1975, Fortunata Barcena instituted a civil action to quiet title over
certain parcels of land. About three months later, Fortunata Barcena died and
defendants moved to dismiss the complaint. Counsels for plaintiff asked for
substitution by her minor children and her husband, but the court dismissed the
case and refused to reconsider. Hence this petition for review.
The Supreme Court reversed the respondent court, set aside the order of
dismissal and the orders denying the motion for reconsideration, and directed the
respondent court to allow the substitution of the minor children and to appoint a
qualified person as guardian ad litem for them.
SYLLABUS
1.CIVIL PROCEDURES; DEATH OF A PARTY; SUBSTITUTION OF PARTIES.
While it is true that a a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion. Where plaintiff
was still alive when the complaint was filed, the Court acquires jurisdiction over
the person. If thereafter she dies, Section 16, Rule 3 of the Rules of Court,
prescribes the procedures whereby a party who dies during the pendency of the
proceedings can be substituted; and where proper substitution of parties had
been asked for, it is grave error for the court to dismiss the complaint on the
ground that a dead person has no legal personality to sue.
2.CIVIL LAW; SUCCESSION; RIGHTS TO SUCCESSION TRANSMITTED
FROM THE MOMENT OF DEATH OF DECEDENT. From the moment of the
death of the decedent, the heirs become the absolute owners of his property,
subject to the rights and obligations of the decedent, and they cannot be
deprived of right thereto except by the methods provided for by law. The moment
of death is the determining factor where the heirs acquire a definite right to the
inheritance whether such right to be pure or contingent. The right of the heirs to
the property of the deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate proceedings.
3.ID.; ID.; ID.; HEIRS BECOME PARTIES IN INTEREST. The death of the
plaintiff during the pendency of an action to quiet title of a parcel of land did not
extinguish her claim or right to the parcels of land in litigation but was transmitted
to her heirs upon her death. Her heirs have thus acquired interest in the
properties in litigation and became parties in interest in the case. There is
therefore, no reason for the Court not to follow their substitution as parties in
interest for the deceased plaintiff.
4.CIVIL PROCEDURE; ACTIONS; SURVIVAL OF ACTIONS. The question as
to whether an action survives or not defends on the nature of the action and the
damaged sued for. In causes of action which survive the wrong complained, of
affects primarily and principally property and property rights, the injuries to the
person being merely incidental, while in the causes of action which do not survive
the injury complained of is to the person, the property and rights of property
affected being incidental.
5.ID.; ID.; ID.; ACTION TO QUIET TITLE. An action to quiet title over a parcel
of land affects primarily and principally property and property rights and
therefore, is one that survives even after plaintiff's death. It is therefore, the duty
of the trial. Court to order the legal representative of the deceased plaintiff to
appear and to be substituted for said deceased, pursuant to Section 17, Rule 3 of
the Rules of Court.
6.ID.; ID.; ID.; REFUSAL OF COURT TO ALLOW SUBSTITUTION ON THE
GROUND THAT THE HEIRS WERE STILL MINORS IS A GRAVE ERROR.
Where, upon the death of the plaintiff in an action to quiet title, counsel has not
only asked that the minor children be substituted for her but also suggested that
the uncle be appointed as guardian ad litemfor them because their father is busy
earning a living for the family; it is grave error for the respondent court to refuse
the request for substitution on the ground that the children were still minors and
cannot sue, because it ought to know that Section 17, Rule 3 of the Rules of
Court, directs the Court to appoint a guardian ad litem for the minor.
D E C I S I O N
MARTIN, J p:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in
Civil Case No. 856, entitled Fortunata Barcena vs. Leon Barcena, et al., denying
the motions for reconsideration of its order dismissing the complaint in the
aforementioned case. cdll
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and
Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the
Court of First Instance of Abra, to quiet title over certain parcels of land located in
Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but
before the hearing of the motion to dismiss, the counsel for the plaintiff moved to
amend the complaint in order to include certain allegations therein. The motion to
amend the complaint was granted and on July 17, 1975, plaintiffs filed their
amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint
on the ground that Fortunata Barcena is dead and, therefore, has no legal
capacity to sue. Said motion to dismiss was heard on August 14, 1975. In said
hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena and
asked for substitution by her minor children and her husband, the petitioners
herein; but the court after the hearing immediately dismissed the case on the
ground that a dead person cannot be a real party in interest and has no legal
personality to sue. LLjur
On August 19, 1975, counsel for the plaintiff received a copy of the order
dismissing the complaint and on August 23, 1975, he moved to set aside the
order of the dismissal pursuant to Sections 16 and 17 of Rule 3 of the Rules of
Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by
counsel for the plaintiff for lack of merit. On September 1, 1975, counsel for
deceased plaintiff filed a written manifestation praying that the minors
Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of merit. From the
order, counsel for the deceased plaintiff filed a second motion for reconsideration
of the order dismissing the complaint claiming that the same is in violation of
Sections 16 and 17 of Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the
complaint in Civil Case No. 856 and its orders denying the motion for
reconsideration of said order of dismissal. While it is true that a person who is
dead cannot sue in court, yet he can be substituted by his heirs in pursuing the
case up to its completion. The records of this case show that the death of
Fortunata Barcena took place on July 9, 1975 while the complaint was filed on
March 31, 1975. This means that when the complaint was filed on March 31,
1975, Fortunata Barcena was still alive, and therefore, the court had acquired
jurisdiction over her person. If thereafter she died, the Rules of Court prescribes
the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a
party to a pending case dies . . . it shall be the duty of his attorney to inform the
court promptly of such death . . . and to give the name and residence of his
executor, administrator, guardian or other legal representatives." This duty was
complied with by the counsel for the deceased plaintiff when he manifested
before the respondent Court that Fortunata Barcena died on July 9, 1975 and
asked for the proper substitution of parties in the case. The respondent Court,
however, instead of allowing the substitution, dismissed the complaint on the
ground that a dead person has no legal personality to sue. This is a grave error.
Article 777 of the Civil Code provides "that the rights to the succession are
transmitted from the moment of the death of the decedent." From the moment of
the death of the decedent, the heirs become the absolute owners of his property,
subject to the rights and obligations of the decedent, and they cannot be
deprived of their rights thereto except by the methods provided for by law. 3 The
moment of death is the determining factor when the heirs acquire a definite right
to the inheritance whether such right be pure or contingent. 4 The right of the
heirs to the property of the deceased vests in them even before judicial
declaration of their being heirs in the testate or intestate proceedings. 5 When
Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was
transmitted to her heirs upon her death. Her heirs have thus acquired interest in
the properties in litigation and became parties in interest in the case. There is,
therefore, no reason for the respondent Court to allow their substitution as parties
in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is
not thereby extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and be substituted for the deceased,
within such time as may be granted . . ." The question as to whether an action
survives or not depends on the nature of the action and the damage sued for. 6 In
the causes of action which survive the wrong complained affects primarily and
principally property and property rights, the injuries to the person being merely
incidental, while in the causes of action which do not survive the injury
complained of is to the person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff
which is an action to quiet title over the parcels of land in litigation affects
primarily and principally property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty of the respondent Court to
order the legal representative of the deceased plaintiff to appear and to be
substituted for her. But what the respondent Court did, upon being informed by
the counsel for the deceased plaintiff that the latter was dead, was to dismiss the
complaint. This should not have been done for under the same Section 17, Rule
3 of the Rules of Court, it is even the duty of the court, if the legal representative
fails to appear, to order the opposing party to procure the appointment of a legal
representative of the deceased. In the instant case the respondent Court did not
have to bother ordering the opposing party to procure the appointment of a legal
representative of the deceased because her counsel has not only asked that the
minor children be substituted for her but also suggested that their uncle be
appointed as guardian ad litem for them because their father is busy in Manila
earning a living for the family. But the respondent Court refused the request for
substitution on the ground that the children were still minors and cannot sue in
court. This is another grave error because the respondent Court ought to have
known that under the same Section 17, Rule 3 of the Rules of Court, the court is
directed to appoint a guardian ad litem for the minor heirs. Precisely in the instant
case, the counsel for the deceased plaintiff has suggested to the respondent
Court that the uncle of the minors be appointed to act as guardian ad litem for
them. Unquestionably, the respondent Court has gravely abused its discretion in
not complying with the clear provision of the Rules of Court dismissing the
complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case. prLL

IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing
the complaint in Civil Case No. 856 of the Court of First Instance of Abra and the
motions for reconsideration of the order of dismissal of said complaint are set
aside and the respondent Court is hereby directed to allow the substitution of the
minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for them. Without pronouncement
as to costs.
SO ORDERED."
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes
1.Which this Court treats as special civil action as per its Resolution dated February
11, 1976.
2.Section 16. Duty of Attorney upon death, incapacity, or incompetency of party.
Whenever a party to a pending case; becomes incapacitated or incompetent, it
shall be the duty of his attorney to inform the court promptly of such death,
incapacity or incompetency, and to give the name and residence of his
executor, administrator, guardian or other legal representative.
Section 17.Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and to be substituted for deceased, within a period
of thirty (30) days, or within such time as may be granted. If the legal
representative fails to appear within said time, the court may order the opposing
party to procure the appointment of a legal representative of the deceased
within a time to be specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the deceased. The court
charges involved in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs. The heirs of the deceased may be allowed to
be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint guardian ad litem for the
minor heirs.
3.Buan vs. Heirs of Buan, 53 Phil. 654.
4.Ibarle vs. Po, 92 Phil. 721.
5.Morales, et al. vs. Ybaez, 98 Phil. 677.
6.Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.
7.Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.

||| (Bonilla v. Barcena, G.R. No. L-41715, June 18, 1976)
FIRST DIVISION
[G.R. No. 166236. July 29, 2010.]
2:15 P.M.
NOLI ALFONSO and ERLINDA
FUNDIALAN, petitioners, vs. SPOUSES HENRY and
LIWANAG ANDRES, respondents.
DECISION
DEL CASTILLO, J p:
Technical rules may be relaxed only for the furtherance of justice and to benefit
the deserving.
In the present petition for review, petitioners assail the August 10, 2004
Resolution 1 of the Court of Appeals (CA) in CA-G.R. CV. No. 78362, which
dismissed the appeal before it for failure of petitioners to file their brief within the
extended reglementary period.
Factual Antecedents
The present case stemmed from a complaint for accion publiciana with damages
filed by respondent spouses Henry and Liwanag Andres against
Noli Alfonso and spousesReynaldo and Erlinda Fundialan before the Regional
Trial Court (RTC), Branch 77, San Mateo, Rizal.
On July 8, 1997, the RTC rendered a Decision 2 in favor of respondents. The
dispositive portion of the Decision states:
WHEREFORE, premises considered judgment is rendered in favor of
the plaintiffs and against the defendants and all persons claiming rights
under them who are ordered:
1.to vacate the premises located at 236 General Luna St., Dulongbayan
11, San Mateo, Rizal;
2.to jointly and severally pay the sum [of] P100.00 as reasonable
compensation for the use of said premises commencing from 04
September 1995; [and] IECAaD
3.to jointly and severally pay the sum of P10,000.00 as and for attorney's
fees and to pay the cost of suit.
SO ORDERED. 3
Petitioners, 4 thus, appealed to the CA.
Proceedings Before the Court of Appeals
On November 5, 2003, petitioners' previous counsel was notified by the CA to file
appellants' brief within 45 days from receipt of the notice. The original 45-day
period expired on December 21, 2003. But before then, on December 8, 2003,
petitioners' former counsel filed a Motion to Withdraw Appearance. Petitioners
consented to the withdrawal.
On December 19, 2003, petitioners themselves moved for an extension of 30
days or until January 21, 2004 within which to file their appellants' brief. Then on
March 3, 2004, petitioners themselves again moved for a fresh period of 45 days
from March 3, 2004 or until April 18, 2004 within which to file their appellants'
brief.
On March 17, 2004, the CA issued a Resolution: 5 a) noting the withdrawal of
appearance of petitioners' former counsel; b) requiring petitioners to cause the
Entry of Appearance of their new counsel; and c) granting petitioners' motions for
extension of time to file their brief for a period totaling 75 days, commencing from
December 21, 2003 or until March 5, 2004.
Petitioners themselves received a copy of this Resolution only on April 6, 2004.
By that time, the extension to file appellants' brief had already long expired.
On April 14, 2004, the Public Attorney's Office (PAO), having been approached
by petitioners, entered 6 its appearance as new counsel for petitioners. However,
on August 10, 2004, the CA issued the assailed Resolution dismissing
petitioners' appeal, to wit:
FOR failure of defendants-appellants to file their brief within the
extended reglementary period which expired on March 5, 2004 as per
Judicial Records Division report dated July 26, 2004, the appeal is
hereby DISMISSED pursuant to Sec. 1 (e), Rule 50 of the 1997 Rules of
Civil Procedure.
SO ORDERED.
On September 6, 2004, the PAO filed their Motion for Reconsideration 7 which
requested for a fresh period of 45 days from September 7, 2004 or until October
22, 2004 within which to file appellants' brief. On October 21, 2004, the
brief 8 was filed by the PAO.
On November 26, 2004, the CA issued a Resolution 9 which denied petitioners'
motion for reconsideration. Hence, this petition for review. CIETDc
Issues
Petitioners raise the following issues:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING
PETITIONERS' APPEAL FOR FAILURE TO FILE THEIR
DEFENDANTS-APPELLANTS' BRIEF, DESPITE THE ATTENDANCE
OF PECULIAR FACTS AND CIRCUMSTANCES SURROUNDING
SUCH FAILURE, LIKE THE GROSS AND RECKLESS NEGLIGENCE
OF THEIR FORMER COUNSEL, THE ABSENCE OF MANIFEST
INTENT TO CAUSE DELAY, THE SERIOUS QUESTIONS OF LAW
POSED FOR RESOLUTION BEFORE THE APPELLATE COURT, AND
THE FACT THAT THE APPELLANTS' BRIEF HAD ALREADY BEEN
FILED WITH THE COURT OF APPEALS AND ALREADY FORMED
PART OF THE RECORDS OF THE CASE.
II
THE DISMISSAL OF PETITIONERS' APPEAL BY THE HONORABLE
COURT OF APPEALS IS HIGHLY UNJUSTIFIED, INIQUITOUS AND
UNCONSCIONABLE BECAUSE IT OVERLOOKED AND/OR
DISREGARDED THE MERITS OF PETITIONERS' CASE WHICH
INVOLVES A DEPRIVATION OF THEIR PROPERTY RIGHTS. 10
Petitioners' Arguments
Petitioners contend that their failure to file their appellants' brief within the
required period was due to their indigency and poverty. They submit that there is
no justification for the dismissal of their appeal specially since the PAO had just
entered its appearance as new counsel for petitioners as directed by the CA, and
had as yet no opportunity to prepare the brief. They contend that appeal should
be allowed since the brief had anyway already been prepared and filed by the
PAO before it sought reconsideration of the dismissal of the appeal and is
already part of the records. They contend that the late filing of the brief should be
excused under the circumstances so that the case may be decided on the merits
and not merely on technicalities.
Respondents' Arguments
On the other hand, respondents contend that failure to file appellants' brief on
time is one instance where the CA may dismiss an appeal. In the present case,
they contend that the CA exercised sound discretion when it dismissed the
appeal upon petitioners' failure to file their appellants' brief within the extended
period of 75 days after the original 45-day period expired.
Our Ruling
The petition has no merit. cCAIaD
Failure to file Brief on Time
Rule 50 of the Rules of Court states:
Section 1.Grounds for dismissal of appeal. An appeal may be
dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:
xxx xxx xxx
(e)Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by these
Rules;
Petitioners plead for the suspension of the rules and cite a number of cases
where the Court excused the late filing of a notice of appeal as well as the late
filing of the appellant's brief. They further cite Development Bank of the
Philippines v. Court of Appeals 11 where the late filing of the appellant's brief was
excused because the Court found the case impressed with public interest.
The cases cited by petitioners are not in point. In the present civil case which
involves the failure to file the appellants' brief on time, there is no showing of any
public interest involved. Neither is there a showing that an injustice will result due
to the application of technical rules.
Poverty cannot be used as an excuse to justify petitioners' complacency in
allowing months to pass by before exerting the required effort to find a
replacement lawyer. Poverty is not a justification for delaying a case. Both parties
have a right to a speedy resolution of their case. Not only petitioners, but also the
respondents, have a right to have the case finally settled without delay.
Furthermore, the failure to file a brief on time was due primarily to petitioners'
unwise choices and not really due to poverty. Petitioners were able to get a
lawyer to represent them despite their poverty. They were able to get two other
lawyers after they consented to the withdrawal of their first lawyer. But they hired
their subsequent lawyers too late.
It must be pointed out that petitioners had a choice of whether to continue the
services of their original lawyer or consent to let him go. They could also have
requested the said lawyer to file the required appellants' brief before consenting
to his withdrawal from the case. But they did neither of these. Then, not having
done so, they delayed in engaging their replacement lawyer. Their poor choices
and lack of sufficient diligence, not poverty, are the main culprits for the situation
they now find themselves in. It would not be fair to pass on the bad
consequences of their choices to respondents. Petitioners' low regard for the
rules or nonchalance toward procedural requirements, which they camouflage
with the cloak of poverty, has in fact contributed much to the delay, and hence
frustration of justice, in the present case. IaSAHC
No compelling reason to disregard
technicalities
Petitioners beg us to disregard technicalities because they claim that on the
merits their case is strong. A study of the records fails to so convince us.
Petitioners theorize that publication of the deed of extrajudicial settlement of the
estate of Marcelino Alfonso is required before their father, Jose Alfonso (Jose)
could validly transfer the subject property. We are not convinced. In Alejandrino
v. Court of Appeals, 12 the Court upheld the effectivity of a deed of extrajudicial
settlement that was neither notarized nor published.
Significantly, the title of the property owned by a person who dies intestate
passes at once to his heirs. Such transmission is subject to the claims of
administration and the property may be taken from the heirs for the purpose of
paying debts and expenses, but this does not prevent an immediate passage of
the title, upon the death of the intestate, from himself to his heirs. 13 The deed of
extrajudicial settlement executed by Filomena Santos Vda. de Alfonso and Jose
evidences their intention to partition the inherited property. It delineated what
portion of the inherited property would belong to whom.
The sale to respondents was made after the execution of the deed of
extrajudicial settlement of the estate. The extrajudicial settlement of estate, even
though not published, being deemed a partition 14 of the inherited property, Jose
could validly transfer ownership over the specific portion of the property that was
assigned to him. 15
The records show that Jose did in fact sell to respondents the subject property.
The deed of sale executed by Jose in favor of the respondents being a public
document, is entitled to full faith and credit in the absence of competent evidence
that its execution was tainted with defects and irregularities that would warrant a
declaration of nullity. As found by the RTC, petitioners failed to prove any defect
or irregularities in the execution of the deed of sale. They failed to prove by
strong evidence, the alleged lack of consent of Jose to the sale of the subject
real property. As found by the RTC, although Jose was suffering from partial
paralysis and could no longer sign his name, there is no showing that his mental
faculties were affected in such a way as to negate the existence of his valid
consent to the sale, as manifested by his thumbmark on the deed of sale. The
records sufficiently show that he was capable of boarding a tricycle to go on trips
by himself. Sufficient testimonial evidence in fact shows that Jose asked
respondents to buy the subject property so that it could be taken out from the
bank to which it was mortgaged. This fact evinces that Jose's mental faculties
functioned intelligently.
In view of the foregoing, we find no compelling reason to overturn the assailed
CA resolution. We find no injustice in the dismissal of the appeal by the CA.
Justice dictates that this case be put to rest already so that the respondents may
not be deprived of their rights.
WHEREFORE, the petition is DENIED. The August 10, 2004 Resolution of the
Court of Appeals in CA-G.R. CV. No. 78362 is AFFIRMED. ASDCaI
SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-de Castro and Perez, JJ., concur.
Footnotes
1.CA rollo, p. 82; penned by Associate Justice Ruben T. Reyes and concurred in by
Associate Justices Perlita J. Tria-Tirona and Jose C. Reyes, Jr.
2.Records, pp. 93-101; penned by Judge Francisco C. Rodriguez, Jr.
3.Id. at 101.
4.Reynaldo Fundialan did not file a Notice of Appeal; id. at 102.
5.CA rollo, p. 77.
6.Id. at 78-79.
7.Id. at 85-89.
8.Id. at 96-110.
9.Id. at 121-123.
10.Rollo, p. 157.
11.411 Phil. 121, 135 (2001).
12.356 Phil. 851, 862 (1998).
13.Heirs of Ignacio Conti v. Court of Appeals, 360 Phil. 536, 546 (1998). CIVIL CODE,
Art. 774.
14.Art. 1082 of the Civil Code states: "Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a compromise, or any
other transaction."
15.See Alejandrino v. Court of Appeals, supra note 12.
||| (Alfonso v. Spouses Andres, G.R. No. 166236, July 29, 2010)

SECOND DIVISION
[G.R. No. 82027. March 29, 1990.]
ROMARICO G. VITUG, petitioner, vs. THE
HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-
CORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
D E C I S I O N
SARMIENTO, J p:
This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in New
York, U.S.A., on November 10, 1980, naming private respondent Rowena
Faustino-Corona executrix. In our said decision, we upheld the
appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate
with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. cdphil
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from
the probate court to sell certain shares of stock and real properties belonging to
the estate to cover allegedly his advances to the estate in the
sum of P667,731.66, plus interests, which he claimed were personal funds. As
found by the Court of Appeals, 2 the alleged advances consisted of P58,147.40
spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and
P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the
sums of P518,834.27 and P90,749.99 from savings account No. 35342-
038 of the Bank of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that
the same funds withdrawn from savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for "concealment of funds belonging to the
estate." 4
Vitug insists that the said funds are his exclusive property having acquired the
same through a survivorship agreement executed with his late wife and the bank
on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred
to as the BANK), that all money now or hereafter deposited by us or any
or either of us with the BANK in our joint savings current account shall
be the property of all or both of us and shall be payable to and collectible
or withdrawable by either or any of us during our lifetime, and after the
death of either or any of us shall belong to and be the sole
property of the survivor or survivors, and shall be payable to and
collectible or withdrawable by such survivor or survivors. LLpr
We further agree with each other and the BANK that the receipt or
check of either, any or all of us during our lifetime, or the receipt or
check of the survivor or survivors, for any payment or withdrawal made
for our above-mentioned account shall be valid and sufficient release
and discharge of the BANK for such payment or withdrawal. 5
The trial court 6 upheld the validity of this agreement and granted "the motion to
sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used
to pay the personal funds of Romarico Vitug in the total sum of P667,731.66 . . .
." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the
herein private respondent, held that the above-quoted survivorship agreement
constitutes a conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of the Civil Code," 8 and
secondly, assuming that it is a mere donation inter vivos, it is a prohibited
donation under the provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated
November 26, 1985 (Annex II, petition) is hereby set aside insofar
as it granted private respondent's motion to sell certain
properties of the estate of Dolores L. Vitug for
reimbursement of his alleged advances to the estate, but the same
order is sustained in all other respects. In addition, respondent
Judge is directed to include provisionally the deposits in Savings
Account No. 35342-038 with the Bank of America, Makati, in the
inventory of actual properties possessed by the spouses at the
time of the decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on
the strength of our decisions in Rivera v. People's Bank and Trust
Co. 11 and Macam v. Gatmaitan 12 in which we sustained the
validity of "survivorship agreements" and considering them as aleatory
contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should
be embodied in a will. A will has been defined as "a personal, solemn, revocable
and free act by which a capacitated person disposes of his property and rights
and declares or complies with duties to take effect after his death." 14 In other
words, the bequest or device must pertain to the testator. 15 In this case, the
monies subject of savings account No. 35342-038 were in the nature of conjugal
funds. In the case relied on, Rivera v. People's Bank and Trust Co., 16 we
rejected claims that a survivorship agreement purports to deliver one party's
separate properties in favor of the other, but simply, their joint holdings: LLjur
xxx xxx xxx
. . . Such conclusion is evidently predicated on the assumption that
Stephenson was the exclusive owner of the funds deposited in the bank,
which assumption was in turn based on the facts (1) that the account
was originally opened in the name of Stephenson alone and (2) that Ana
Rivera "served only as housemaid of the deceased." But it not
infrequently happens that a person deposits money in the bank in the
name of another; and in the instant case it also appears that Ana Rivera
served her master for about nineteen years without actually receiving her
salary from him. The fact that subsequently Stephenson transferred the
account to the name of himself and/or Ana Rivera and executed with the
latter the survivorship agreement in question although there was no
relation of kinship between them but only that of master and servant,
nullifies the assumption that Stephenson was the exclusive owner of the
bank account. In the absence, then, of clear proof to the contrary, we
must give full faith and credit to the certificate of deposit which recites in
effect that the funds in question belonged to Edgar Stephenson and Ana
Rivera; that they were joint (and several) owners thereof; and that
either of them could withdraw any part or the whole of said account
during the lifetime of both, and the balance, if any, upon the
death of either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract
whereby, according to article 1790 of the Civil Code, one of the parties
or both reciprocally bind themselves to give or do something as an
equivalent for that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen at an
indeterminate time. As already stated, Leonarda was the owner of the
house and Juana of the Buick automobile and most of the furniture. By
virtue ofExhibit C, Juana would become the owner of the house in case
Leonarda died first, and Leonarda would become the owner of the
automobile and the furniture if Juana were to die first. In this manner
Leonarda and Juana reciprocally assigned their respective property to
one another conditioned upon who might die first, the time of death
determining the event upon which the acquisition of such right by the
one or the other depended. This contract, as any other contract, is
binding upon the parties thereto. Inasmuch as Leonarda had died before
Juana, the latter thereupon acquired the ownership of the house, in the
same manner as Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence
it must be presumed to be conjugal, having been acquired during the
existence of the marital relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a
donation between the spouses because it involved no conveyance of a spouse's
own properties to the other. LLphil
It is also our opinion that the agreement involves no modification of the conjugal
partnership, as held by the Court of Appeals, 21 by "mere stipulation," 22 and that
it is no "cloak" 23 to circumvent the law on conjugal property relations. Certainly,
the spouses are not prohibited by law to invest conjugal property, say, by
way of a joint and several bank account, more commonly denominated in
banking parlance as an "and/or" account. In the case at bar, when the
spouses Vitug opened savings account No. 35342-038, they merely put what
rightfully belonged to them in a money-making venture. They did not dispose of it
in favor of the other, which would have arguably been sanctionable as a
prohibited donation. And since the funds were conjugal, it can not be said that
one spouse could have pressured the other in placing his or her deposits in the
money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all"
feature, but in reality, that contract imposed a mere obligation with a term, the
term being death. Such agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:

ART. 2010.By an aleatory contract, one of the parties or both
reciprocally bind themselves to give or to do something in
consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at an
indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends
on either the happening of an event which is (1) "uncertain," (2) "which is to occur
at an indeterminate time." A survivorship agreement, the sale of a sweepstake
ticket, a transaction stipulating on the value of currency, and insurance have
been held to fall under the first category, while a contract for life annuity or
pension under Article 2021, et sequentia, has been categorized under the
second. 25 In either case, the element of risk is present. In the case at bar, the
risk was the death of one party and survivorship of the other. prcd
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be
shown in a given case that such agreement is a mere cloak to hide an
inofficious donation, to transfer property in fraud of creditors, or to defeat
the legitime of a forced heir, it may be assailed and annulled upon such
grounds. No such vice has been imputed and established against the
agreement involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been
executed for such unlawful purposes, or, as held by the respondent court, in
order to frustrate our laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased
her husband, the latter has acquired upon her death a vested right over the
amounts under savings account No. 35342-038 of the Bank of America. Insofar
as the respondent court ordered their inclusion in the inventory of assets left by
Mrs. Vitug, we hold that thecourt was in error. Being the separate
property of petitioner, it forms no more part of the estate of the deceased. cdrep
WHEREFORE, the decision of the respondent appellate court, dated June 29,
1987, and its resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado JJ., concur.
Footnotes
1.Corona v. Court of Appeals, No. 59821, August 30, 1982, 116 SCRA 316.
2.Kapunan, Santiago, M., J., ponente; Puno Reynato S. and Marigomen, Alfredo, JJ.,
concurring.
3.Rollo, 21.
4.Id., 22.
5.Id.
6.Judge (now Justice of the Court of Appeals) Asaali S. Isnani, presiding.
7.Rollo, 23.
8.Id., 26.
9.Now, Article 87 of the Family Code.
10.Rollo, 28-29.
11.73 Phil. 546 (1942).
12.64 Phil. 187 (1937).
13.CIVIL CODE, Art. 2010.
14.III TOLENTINO, CIVIL CODE OF THE PHILIPPINES 26 (1973 ed.), citing 1
GOMEZ 53.
15.See CIVIL CODE, supra., arts. 793, 794, 930.
16.Supra.
17.Supra., 547.
18.Supra.
19.Supra., 190-191.
20.CIVIL CODE, supra, art. 160.
21.In the words of the Appellate Court: "Since private respondent and his late wife did
not enter into a marriage settlement before marriage, their property relationship
was that of conjugal partnership governed by the Civil Code. The
system of conjugal partnership prohibits, as already mentioned, donation
between the spouses during the marriage, except that which takes effect after
the death of the donor, in which case, the donation shall comply with the
formalities of a will (Arts. 133, 728, 805). To allow the prohibited donation by
giving it a cloak of aleatory contract would sanction a (modification) of a
marriage settlement during marriage by a mere stipulation. As mandated by Art.
52, the nature, consequences and incidents of marriage, which is not a mere
contract but an inviolable social institution are governed by law, and not subject
to stipulation.".
22.Id.
23.Id.
24.CIVIL CODE, supra., art. 1193.
25.V PARAS, CIVIL CODE OF THE PHILIPPINES, 782 (1986 ed.).
26.Rivera, supra, 548.

||| (Vitug v. Court of Appeals, G.R. No. 82027, March 29, 1990)

SECOND DIVISION
[A.M. No. 2026. December 19, 1981.]
NENITA DE VERA SUROZA, complainant, vs. JUDGE
REYNALDO P. HONRADO of the Court of First Instance of
Rizal, Pasig Branch 25 and EVANGELISTA S. YUIPCO, Deputy
Clerk of Court, respondents.
SYNOPSIS
Complainant wife of the preterited heir filed a verified complaint in the Supreme
Court against respondent Judge for having probated an alleged fraudulent will of
the decedent Marcelina Salvador Suroza naming a supposed granddaughter as
the sole heir and giving nothing at all to her supposed father who was still alive,
and for having allowed the administratrix and her cohorts to withdraw from
various banks, the deposits of the testatrix. Said will was written in English, a
language not known to the illiterate testatrix and probably forged because the
testatrix and the attesting witnesses did not appear before the notary as admitted
by the notary himself. Complainant also denounced deputy clerk of court Yuipco
for not giving her access to the record of the probate case and for insinuating that
for ten thousand pesos the case might be decided in complainant's favor. In their
comment, respondent Judge merely pointed out that the complainant did not
appeal from the decree of probate and that upon being ejected the latter asked
for a thirty-day period to vacate the house of the testatrix, while respondent
Yuipco vehemently denied the charges against her. The case was referred for
investigation, report and recommendation to Justice Juan A. Sison of the Court of
Appeals who submitted a report dated October 7, 1951. Relying on the decision
of the Court of Appeals dismissing complainant's petition for certiorari and
prohibition, respondent Judge filed a motion to dismiss the administrative case
for having allegedly become moot and academic.
The Supreme Court ruled that respondent Judge was guilty of inexcusable
negligence and dereliction of duty for his unproper disposition of the testate case
which might have resulted in a miscarriage of justice and imposed upon him a
fine equivalent to his salary for one month. The case against respondent Yuipco
was held as having become moot and academic in view of her being beyond the
Court's disciplinary jurisdiction because she is no longer employed in the
judiciary.
SYLLABUS
1.CONSTITUTIONAL LAW; SUPREME COURT SUPERVISION OVER LOWER
COURTS; ADMINISTRATIVE CASE AGAINST JUDGES; REQUIREMENTS TO
BE FOUND GUILTY OF SERIOUS MISCONDUCT OR INEFFICIENCY.
Administrative action may be taken against a judge of the court of first instance
for serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct
implies malice or a wrongful intent, not a mere error of judgment. "For serious
misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law, or were
in persistent disregard of well-known legal rules (In re Impeachment of Horrilleno,
43 Phil. 212, 214-215).
2.ID.; ID.; ID.; ID.; INEFFICIENCY DEFINED. Inefficiency implies negligence,
incompetence, ignorance and carelessness. A judge would be inexcusably
negligent if he failed to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 35 SCRA 107, 119).
3.ID.; ID.; ID.; ID.; CIRCUMSTANCES IN THE CASE AT BAR SHOWING
NEGLIGENCE AND DERELICTION OF DUTY. In this case, respondent
judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that
the will is shown in the attestation clause and notarial acknowledgment where the
testatrix is repeatedly referred to as the "testator" instead of "testatrix", that he
could have noted not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter as sole
heiress and giving nothing at all to her supposed father who was still alive, that
after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness, and
that in spite of the absence of an opposition, respondent judge should have
personally conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.
4.ID.; ID.; ID.; ID.; INSUFFICIENCY IN HANDLING THE TESTATE CASE;
PENALTY; CASE AT BAR. For inefficiency in handling the testate case of
Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge.
5.ID.; ID.; ID.; ADMINISTRATIVE COMPLAINT AGAINST DEPUTY CLERK OF
COURT; BECOMES MOOT AND ACADEMIC WHEN RESPONDENT IS NO
LONGER EMPLOYED IN THE JUDICIARY; CASE AT BAR. The case against
respondent Deputy Clerk of Court has become moot and academic because she
is no longer employed in the judiciary. Since September 1, 1980, she has been
assistant city fiscal of Surigao City. She is beyond this Court's disciplinary
jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21, 1980,
101 SCRA 225).
D E C I S I O N
AQUINO, J p:
Should disciplinary action be taken against respondent judge for having admitted
to probate a will, which on its face is void because it is written in English, a
language not known to the illiterate testatrix, and which is probably a forged
will because she and the attesting witnesses did not appear before the notary as
admitted by the notary himself? LibLex
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled strands
of human relationship.
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc.
No. 7816). They were childless. They reared a boy named Agapito who used the
surname Suroza and who considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p.
148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro
married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the
Federal Government. That explains why on her death she had accumulated
some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceedings No. 1807 of the Court of First Instance of
Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R)
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate case)
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veteran's hospital in San Francisco or Palo Alto,
California (p. 87, Record)
On a date not indicated in the record, the spouses Antonio Sy and Hermogena
Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted
to Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later
delivered to Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.
SP-08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but
was not legally adopted by Agapito. She married Oscar Medrano and is residing
at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when
she was 73 years old. That will, which is in English, was thumb marked by
her. She was illiterate. Her letters in English to the Veterans Administration were
also thumb marked by her (pp. 38-39, CA Rollo). In that will, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn. LLjur
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City.
At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and house in that place. She
acquired the lot in 1966 (p. 134, Record of testate case)
On January 13, 1975, Marina Paje, alleged to be a laundry woman of Marcelina
(p. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita
Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First
Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of
court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are not
in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administrative. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of America to allow
Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina
S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testratrix's house,
among whom was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelina's estate. She and the other occupants of the decedent's
house filed on April 18 in the said proceedings a motion to set aside the order of
April 11 ejecting them. They alleged that the decedent's son Agapito was the sole
heir of the deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the
decedent's granddaughter (pp. 52-68, Record of testate case). Later, they
questioned the probate court's jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other
than Marilyn, were claiming Marcelina's estate, he issued on April 23 an order
probating her supposed will wherein Marilyn was the instituted heiress (pp. 74-
77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition of administration and
preliminary injunction." Nenita in that motion reiterated her allegation that Marilyn
was a stranger to Marcelina, that the will was not duly executed and attested,
that it was procured by means of undue influence employed by Marina and
Marilyn and that the thumb marks of the testatrix were procured by fraud or
trick. prLL
Nenita further alleged that the institution of Marilyn as heir was void because of
the perpetration of Agapito and that Marina was not qualified to act as executrix
(pp. 83-91, Record)
To that motion was attached an affidavit of Zenaida A. Peaojas, the housemaid
of Marcelina, who swore that the alleged will was falsified (p. 109, Record)
Not content with her motion to set aside the ejectment order (filed on April 18)
and her omnibus motion to set aside the proceedings (filed on April 24), Nenita
filed the next day, April 25, an opposition to the probate of the will and a counter-
petition for letters of administration. In that opposition, Nenita assailed the due
execution of the will and stated the names and addresses of Marcelina's intestate
heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelina's niece, who swore that Marcelina never executed a will (pp. 124-125,
Record)
Marina in her answer to Nenita's motion to set aside the proceedings admitted
that Marilyn was not Marcelina's grand daughter but was the daughter of Agapito
and Arsenia de la Cruz and that Agapito was not Marcelina's son but merely
an anak-anakan who was not legally adopted (p. 143, Record)
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition
for the issuance of letters of administration because of the nonappearance of her
counsel at the hearing. She moved for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending
incidents, Nenita V. Suroza reiterated her contention that the alleged will is void
because Marcelina did not appear before the notary and because it is written in
English which is not known to her (pp. 208, 209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record)
Instead of appealing from that order and the order probating the will, Nenita "filed
a case to annul" the probate proceedings (p. 332, Record). That case, Civil Case
No. 24276,Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to
Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398-402,
Record)
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,1978, filed in
this Court, Nenita charged Judge Honrado with having probated the fraudulent
will of Marcelina. The complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumb mark to the will and that
she did not know English, the language in which the will was written. (In the
decree of probate Judge Honrado did not make any finding that the will was
written in a language known to the testatrix)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition. cdll
Nenita disclosed that she talked several times with Judge Honrado and informed
him that the testatrix did not know the executrix Marina Paje, that the
beneficiary's real name is Marilyn Sy and that she was not the next of kin of the
testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina
and her cohorts to withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not
giving her access to the record of the probate case by alleging that it was useless
for Nenita to oppose the probate since Judge Honrado would not change his
decision. Nenita also said that Evangeline insinuated that if she (Nenita) had ten
thousand pesos, the case might be decided in her favor. Evangeline allegedly
advised Nenita to desist from claiming the properties of the testatrix because she
(Nenita) had no rights thereto and, should she persist, she might lose her
pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations
of the complaint. He merely pointed to the fact that Nenita did not appeal from
the decree of probate and that in a motion dated July 6, 1976 she asked for a
thirty-day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and
that the latter did not mention Evangeline in her letter dated September 11, 1978
to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented
Nenita from having access to the record of the testamentary proceeding.
Evangeline was not the custodian of the record. Evangeline "strongly,
vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could get a
favorable decision. Evangeline also denied that she has any knowledge of
Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honrado was brought to the attention of this
Court in the Court Administrator's memorandum of September 25, 1980. The
case was referred to Justice Juan A. Sison of the Court of Appeals for
investigation, report and recommendation. He submitted a report dated October
7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she prayed that
the will, the decree of probate and all the proceedings in the probate case be
declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized
the will. He swore that the testatrix and the three attesting witnesses did not
appear before him and that he notarized the will "just to accommodate a brother-
lawyer on the condition," that said lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil
action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 29. 1981)
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a
miscarriage of justice because the decedent's legal heirs and not the instituted
heiress in the void will should have inherited the decedent's estate.
A judge may be criminally liable for knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory
order by reason of inexcusable negligence or ignorance (Arts. 204 to 206,
Revised Penal Code)
Administrative action may be taken against a judge of the court of first instance
for serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct
implies malice or a wrongful intent, not a mere error of judgment. "For serious
misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law, or were
in persistent disregard of well-known legal rules" (In re Impeachment of
Horrilleno, 43 Phil. 212, 214-215). llcd
Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the performance
of his duties that diligence, prudence and circumspection which the law requires
in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan.
21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written
in English and was thumb marked by an obviously illiterate testatrix, could have
readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language
"understood and known" to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix "and translated into Filipino
language." (p. 16, Record of testate case) That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of Article 804 of the Civil Code that every will
must be executed in a language or dialect known to the testator. Thus, a will
written in English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660)
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as
the "testator" instead of "testatrix."
Had respondent judge been careful and observant, he could have noted not only
the anomaly as to the language of the will but also that there was something
wrong in instituting the supposed granddaughter as sole heiress and giving
nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a
witness.
In spite of the absence of an opposition, respondent judge should have
personally conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because
she is no longer employed in the judiciary. Since September 1, 1980 she has
been assistant city fiscal of Surigao City. She is beyond this Court's disciplinary
jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21, 1980,
101 SCRA 225)
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin, JJ., concur.
Abad Santos, J., took no part.
Concepcion Jr., J., on leave.
||| (Suroza v. Honrado, A.M. No. 2026-CFI, December 19, 1981)
FIRST DIVISION
[G.R. No. 147145. January 31, 2005.]
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL
ABELLAR, respondents.
D E C I S I O N
CARPIO, J p:
The Case
Before the Court is a petition for review 1 assailing the Decision 2 of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution 3 of the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and
testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940. 4 His widow Paula Toray ("Toray") died
sometime in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition, 5 docketed as
SP No. 070 (313-8668), for the probate of the last will and testament ("will") of
Abada. Abada allegedly named as his testamentary heirs his natural children
Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following reasons: (1) it was not
executed and attested as required by law; (2) it was not intended as the last will
of the testator; and (3) it was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz,
Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et
al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi
Tronco, et al."), also opposed the petition. The oppositors are the nephews,
nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition 6 before the RTC-
Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will
and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al.
opposed the petition on the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition 7 before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for reconsideration, the
order allowing the probate of Toray's will became final and executory. 8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble ("Caponong-Noble") Special Administratrix of the estate of
Abada and Toray. 9Caponong-Noble moved for the dismissal of the petition for
probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order
dated 20 August 1991. 10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March 1992, former Presiding Judge
Edgardo Catilo had already submitted the case for decision. Thus, the RTC-
Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that
there is substantial compliance with the formalities of a Will as the law
directs and that the petitioner through his testimony and the deposition of
Felix Gallinero was able to establish the regularity of the execution of the
said Will and further, there being no evidence of bad faith and fraud, or
substitution of the said Will, the Last Will and Testament of Alipio Abada
dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar 11 is appointed administrator of
the estate of Paula Toray who shall discharge his duties as such after
letters of administration shall have been issued in his favor and after
taking his oath and filing a bond in the amount of Ten Thousand
(P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio
Abada shall continue discharging her duties as such until further orders
from this Court.
SO ORDERED. 12
The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada has
an attestation clause as required by law. The RTC-Kabankalan further held that
the failure of the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the
Resolution of the RTC-Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1.What laws apply to the probate of the last will of Abada;
2.Whether the will of Abada requires acknowledgment before a
notary public; 13
3.Whether the will must expressly state that it is written in a
language or dialect known to the testator;
4.Whether the will of Abada has an attestation clause, and if so,
whether the attestation clause complies with the
requirements of the applicable laws;
5.Whether Caponong-Noble is precluded from raising the issue of
whether the will of Abada is written in a language known to
Abada;
6.Whether evidence aliunde may be resorted to in the probate of
the will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting
to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure 14 which governed the execution of wills before the enactment of the
New Civil Code.
The matter in dispute in the present case is the attestation clause in the will of
Abada. Section 618 of the Code of Civil Procedure, as amended by Act No.
2645, 15 governs the form of the attestation clause of Abada's will. 16 Section 618
of the Code of Civil Procedure, as amended, provides:
SEC. 618.Requisites of will. No will, except as provided in the
preceding section, 17 shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be written in the language or
dialect known by the testator and signed by him, or by the testator's
name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other. The testator
or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page
thereof, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used, upon which
the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of
the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are the
following:
(1)The will must be written in the language or dialect known by the
testator;
(2)The will must be signed by the testator, or by the testator's
name written by some other person in his presence, and by
his express direction;
(3)The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of
each other;
(4)The testator or the person requested by him to write his name
and the instrumental witnesses of the will must sign each
and every page of the will on the left margin;
(5)The pages of the will must be numbered correlatively in letters
placed on the upper part of each sheet;
(6)The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator
signed the will and every page of the will, or caused some
other person to write his name, under his express direction,
in the presence of three witnesses, and the witnesses
witnessed and signed the will and all pages of the will in the
presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is written
in a language or dialect known to the testator. Further, she maintains that the will
is not acknowledged before a notary public. She cites in particular Articles 804
and 805 of the Old Civil Code, thus:
Art. 804.Every will must be in writing and executed in [a] language or
dialect known to the testator.
Art. 806.Every will must be acknowledged before a notary public by the
testator and the witnesses. . . . 18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code. 19 Article 804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the
New Civil Code is taken from Section 618 of the Code of Civil
Procedure. 20 Article 806 of the New Civil Code is taken from Article 685 of the
Old Civil Code 21 which provides:
Art. 685.The notary and two of the witnesses who authenticate the will
must be acquainted with the testator, or, should they not know him, he
shall be identified by two witnesses who are acquainted with him and are
known to the notary and to the attesting witnesses. The notary and the
witnesses shall also endeavor to assure themselves that the testator
has, in their judgment, the legal capacity required to make a will.

Witnesses authenticating a will without the attendance of a notary, in
cases falling under Articles 700 and 701, are also required to know the
testator.
However, the Code of Civil Procedure 22 repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution of any will. 23 Therefore, Abada's will does not require
acknowledgment before a notary public. HCaDET
Caponong-Noble points out that nowhere in the will can one discern that Abada
knew the Spanish language. She alleges that such defect is fatal and must result
in the disallowance of the will. On this issue, the Court of Appeals held that the
matter was not raised in the motion to dismiss, and that it is now too late to raise
the issue on appeal. We agree with Caponong-Noble that the doctrine of
estoppel does not apply in probate proceedings. 24 In addition, the language used
in the will is part of the requisites under Section 618 of the Code of Civil
Procedure and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Noble's contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or dialect
used in the will. 25 This is a matter that a party may establish by
proof aliunde. 26 Caponong-Noble further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew or understood the contents of the
will and the Spanish language used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the Spanish
language. 27 This sufficiently proves that Abada speaks the Spanish language.
The Attestation Clause of Abada's Will
A scrutiny of Abada's will shows that it has an attestation clause. The attestation
clause of Abada's will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima
voluntad y testamento en presencia de nosotros, habiendo tambien el
testador firmado en nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo. Y en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador al pie de
este documento y en el margen izquierdo de todas y cada una de las
dos hojas de que esta compuesto el mismo, las cuales estan paginadas
correlativamente con las letras "UNO" y "DOS' en la parte superior de la
carrilla. 28
Caponong-Noble proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo" which means "in the left
margin of each and every one of the two pages consisting of the same" shows
that the will consists of two pages. The pages are numbered correlatively with the
letters "ONE" and "TWO" as can be gleaned from the phrase "las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause fails to state expressly
that the testator signed the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for applying to the present case
the rule on substantial compliance found in Article 809 of the New Civil Code. 29
The first sentence of the attestation clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the testator Alipio Abada as his last
will and testament in our presence, the testator having also signed it in our
presence on the left margin of each and every one of the pages of the same."
The attestation clause clearly states that Abada signed the will and its every
page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial compliance in determining the
number of witnesses. While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson v. De Gorostiza, 30 the
Court recognized that there are two divergent tendencies in the law on wills, one
being based on strict construction and the other on liberal construction.
In Dichoso, the Court noted that Abangan v. Abangan, 31 the basic case on the
liberal construction, is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez, 32 the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict construction
should apply, also cited a long series of cases to support his view. The Court,
after examining the cases invoked by the parties, held:
. . . It is, of course, not possible to lay down a general rule, rigid and
inflexible, which would be applicable to all cases. More than anything
else, the facts and circumstances of record are to be considered in the
application of any given rule. If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been
executed substantially in accordance with the requirements of the law,
the inclination should, in the absence of any suggestion of bad faith,
forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other non-
essential defect. . . . .
An attestation clause is made for the purpose of preserving, in
permanent form, a record of the facts attending the execution of the will,
so that in case of failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. (Thompson on Wills, 2d ed.,
sec. 132.) A will, therefore, should not be rejected where its attestation
clause serves the purpose of the law. . . . 33
We rule to apply the liberal construction in the probate of Abada's will. Abada's
will clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question on
the number of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidence aliunde. The Court explained the
extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions do
tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any part of
the document or supply missing details that should appear in the will
itself. They only permit a probe into the will, an exploration within its
confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of dire
results. 34 (Emphasis supplied)
The phrase "en presencia de nosotros" or "in our presence" coupled with the
signatures appearing on the will itself and after the attestation clause could only
mean that: (1) Abada subscribed to and professed before the three witnesses
that the document was his last will, and (2) Abada signed the will and the left
margin of each page of the will in the presence of these three witnesses. ATCEIc
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and all
its pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of the
statute be made. It is sufficient if from the language employed it can
reasonably be deduced that the attestation clause fulfills what the law
expects of it. 35
The last part of the attestation clause states "en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our presence and of the
testator." This clearly shows that the attesting witnesses witnessed the signing of
the will of the testator, and that each witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January
2001 in CA-G.R. CV No. 47644.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago and Azcuna, JJ., concur.
Footnotes
1.Under Rule 45 of the 1997 Rules of Civil Procedure.
2.Penned by Associate Justice Presbitero J. Velasco, Jr. (now Court Administrator)
with Associate Justices Ruben T. Reyes and Juan Q. Enriquez, Jr., concurring.
3.Penned by Presiding Judge Rodolfo S. Layumas.
4.Alipio C. Abaja tried to secure a copy of Abada's death certificate but the Local Civil
Registrar of Cawayan, Negros Occidental informed him that all the records of
pre-war deaths were destroyed during the war.
5.In the matter of the Probate of the Last Will and Testament of the late Alipio Abada.
6.In the matter of the Probate of the Last Will and Testament of the late Paula Toray.
7.In the matter of the Intestate Estate of Spouses Alipio Abada and Paula Toray.
Petition for Letters of Administration.

8.Records, p. 38.
9.Ibid., p. 41.
10.Ibid., pp. 42-45.
11.It should be Abellar.
12.Rollo, p. 47.
13.Petitioner phrases this issue as to whether the will has to be "notarized." A
notarized document includes one that is subscribed and sworn under oath or
one that contains a jurat. Acknowledgment is different. Acknowledgment refers
to an act in which an individual on a single occasion: (a) appears in person
before the notary public and presents an integrally complete instrument or
document; (b) is attested to be personally known to the notary public or
identified by the notary public through competent evidence of identity as
defined by these Rules; and (c) represents to the notary public that the
signature on the instrument or document was voluntarily affixed by him for the
purposes stated in the instrument or document, declares that he has executed
the instrument or document as his free and voluntary act and deed, and, if he
acts in a particular representative capacity, that he has the authority to sign in
that capacity. (See Section 1, Rule II of 2004 Rules of Notarial Practice)
14.The Code of Civil Procedure took effect on 1 September 1901.
15.An Act amending section six hundred and eighteen of Act Numbered One hundred
and ninety, entitled "An Act providing A Code of Procedure in Civil Actions and
Special Proceedings in the Philippine Islands," prescribing additional
requirement in the execution of wills. It took effect on 1 July 1916.
16.The validity of the execution of a will is governed by the statutes in the force at the
time of its execution (In re will of Riosa, 39 Phil. 23 [1918]). Article 795 of the
New Civil Code provides: "The validity of a will as to its form depends upon the
observance of the law in force at the time it is made."
17.Section 617 governs wills executed by a Spaniard or a resident of the Philippine
Islands before Act No. 190 came into force on 1 September 1901.
18.Rollo, p. 151.
19.The New Civil Code took effect on 30 August 1950.
20.TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 67 Vol. III (1998).
21.Ibid., p. 101.
22.FISHER, THE CIVIL CODE OF SPAIN, 198 (1921).
23.Valera v. Purugganan, 4 Phil. 719 (1905).
24.See Fernandez, et al. v. Dimagiba, 128 Phil. 450 (1967).
25.Lopez v. Liboro, 81 Phil. 429 (1948).
26.Ibid.
27.TSN, 26 October 1989, p. 74.
28.Exhibit "A," Folder.
29.Article 809 of the New Civil Code provides:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or
in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the
requirements of article 805.
30.57 Phil. 437 (1932).
31.40 Phil. 476 (1919).
32.68 Phil. 745 (1939).
33.Ibid.
34.Gil v. Murciano, Resolution on the Motion for Reconsideration, dated 20 March
1953, 88 Phil. 260 (1951). See also Caneda v. Court of Appeals, G.R. No.
103554, 28 May 1993, 222 SCRA 781, where the Court explained the extent
and limits of Article 809 of the New Civil Code.
35.Dichoso de Ticson v. De Gorostiza, supra, see note 31.

||| (Testate Estate of Abada v. Abaja, G.R. No. 147145, January 31, 2005)